Above titled revision petition is directed against the order of District Court of Criminal Jurisdiction, Mirpur, dated 27-10-2007, whereby the petitioner was refused bail.
2. Brief facts leading to the background of the revision petition are that a case under Section 302, A.P.0 was registered at Police Station, Mirpur city on the complaint of Muhammad Sadiq. It was reported that on 13-04-2007 at about 12.45, p.m the complainant a resident of Sector F-2 alongwith his grandsons Hamad-ul-Hassan S/o Muhammad Farooq and Hamza Nisar S/O Nisar Ahmad left the home for offering "Juma" prayer. They came out of the house from back door. Nisar and the complainant were ahead while Hammad was closing the gate. In the meantime they heard sound of fires and saw Hamza Nisar injured and bleeding. No one was present around. The fire hit the victim from the front side where a marriage was taking place. Hanna Nisar aged 10 years was taken to Riaz Hospital where he succumbed to injury.
3. During investigation, the accused petitioner was apprehended by the Police. He applied for bail before the District Court of Criminal Jurisdiction, Mirpur but the same was refused through the impugned order. Hence this revision petition.
4. Learned Counsel for the petitioner argued that an enmity was prevailing between the parties due to which the accused petitioner was roped in a false case. He was not nominated in the FIR and was arrested on the basis of statement of P.W Zaffar Iqbal wherein a doubt regarding involvement of the accused petitioner in the offence was expressed. The occurrence was not witnessed and statement of P.W Zaffar Iqbal was an after thought and was not supported by any independent corroborative material. The use of .222-bore gun for commission of the offence allegedly recovered from the accused petitioner was also doubtful as two conflicting reports prepared by Forensic Science Expert were brought on record. One report shows that jacketed bullet recovered from the dead body was fired while the other indicates that it was not fired from the said weapon. The learned Counsel contended that on 13-04-2007 at 9.00, p.m. P.Ws Zaffar Iqbal, Khalid Sherif and others came to the house of the complainant, there they concocted a story to rope the petitioner in the case and later on a fabricated Forensic Science Expert's report was also arranged in support of the false allegation. He submitted that the trial Court has not given any cogent reason in support o the impugned order. The bail was refused on, the ground of previous conduct of the accused- petitioner and the point regarding Forensic Science Expert's report creating doubt in truthfulness of the prosecution story and indicating that the case against the accused petitioner requires further probe was not considered in a judicial manner, thus the impugned order being incorrect and against principles governing bail matter was not sustainable therefore, the same may be set aside and by accepting the revision petition the accused be released on bail.
5. On the other hand, it was argued that P.W Zaffar Iqbal saw the accused while standing and firing from his gate towards the East. The weapon of offence .222-bore licensed gun was recovered at his instance. Two crime empties were seized from the place of occurrence while jacketed bullet of 222- bore gun was also recovered from the dead body. Though the occurrence was not witnessed but strong circumstantial evidence to establish a prima facie case was brought on record and it cannot be said that the Court below committed any error while refusing bail. The learned counsel 'contended that the accused petitioner was hardened and desperate criminal and his previous conduct was also suggestive that he was not entitled to concession of bail under Section 497, Cr.P.C, thus the impugned order being correct and in accordance with law and principles governing bail matter needs no interference, therefore, the revision petition may be dismissed.
6. Learned Additional Advocate General supported the arguments advanced by the learned counsel for the complainant.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. It may be mentioned here that while deciding an application under Section 497, Cr.P.C, a Court after considering the material such as FIR, statements of prosecution witnesses recorded under Section 161, A Cr.P.C, recoveries etc, and defence plea if any, arrives at the conclusion that the matter requires further probe, shall grant bail to an accused and if there appears that a prima facie case was established, the same shall be refused.
9. In the present case the accused petitioner was not nominated at the time of lodging FIR. In statement recorded under Section 161, Cr.P.0 Zaffar Iqbal alleged that just before the occurrence he left the house of his close relative Muhammad Sadiq and heard the sound of fires while passing, from nearby the house of Sajid Nazir. He also saw the accused standing in his gate and firing with 222-bore gun towards the east. Later on he came to know that a fire hit Hamm Nisar. At about 9.00, p.m. while he was sitting with Khalid Sharif and Muhammad Sadiq, Sajid Nazir came there and expressed his view that some one was aiming to kill Muhammad Sadiq but the bullet hit the victim.
The accused who was nervous told the others that he was not feeling well and left the house of the complainant; upon this the P.W expressed his doubt regarding involvement of the accused in the occurrence and nominated him as suspect in the statement.
10.Following the above mentioned statement of Zaffar Iqbal the Police apprehended Sajid Nazir.
Alleged weapon of offence 222-bore licensed gun was recovered at his instance while two crime empties were seized from the place of firing and a jacketed bullet of .222-bore gun was also recovered from the dead body. Thus it implies that the above mentioned recoveries were the only corroborative material in, support of the accusation.
11.It is interesting to note that the weapon, crime empties and jacketed bullet were sent to Forensic Science Laboratory' Lahore for examination. On 14-07-2007 a copy of Forensic Science Expert's report prepared on 25-05-2007 under No, 2226-FSL showing that the crime empties and jacketed bullet held been fired from the weapon recovered at the instance of the accused-petitioner was placed on record. Later on an attested copy of another report regarding the above mentioned articles, prepared on the same date and under the same number showing that the jacketed bullet had not been fired from the said weapon, alongwith the letters of Deputy Inspector General Police Mirpur Region and Director Forensic Science Laboratory, Punjab disclosing that the previous report was fabricated one was also brought on record. The trial Court failed to appreciate that prima facie contradiction in Forensic Science Expert's reports suggest further probe and that brings the case within the ambit of sub-Section 2 of Section 497, Cr.P.C.
12. In light of the facts listed above, the revision petition is accepted. The petitioner shall be released from custody provided he furnishes bail bond in sum of Rs, 10,00,000/- and personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur.