' IJAZ AHMAD CHADUHRY, J.---Preliminary objection has been raised by the learned counsel for the complainant that earlier application moved by Asim, co-accused of the petitioner, was dealt with by another Division Bench headed by our learned brother Mian Muhammad Najm-uzZaman and Sh. Javaid Sarfraz, JJ, for grant of protective bail and that application was disposed of. It is further stated by the learned counsel for the complainant that now Mian Muhammad Najum-uz-Zaman, our learned brother is available in the D.B. Which is being headed by our learned brother Kh.
Muhammad Sharif, and as such the propriety demands that in view of Zubair's case their petition may also be heard by the same Division Bench. On the other hand, it has been pointed out by the learned counsel that his cases are not being fixed before our learned brother Kh. Muhammad Sharif, J for the personal reasons. Even otherwise, we have noticed that only protective bail was granted and no discussion was made on the merits of the case. As such the objection raised by the learned counsel for the complainant is repelled and this petition is being decided on merits.
2. The petitioner seeks bail after arrest in case F.I.R. No,884-2006 dated 14-12-2006 registered under sections 302/ 324/148/149/109, P.P.C. Read with section 7 of ATA, 1997 at Police Station Hanjarwal , Lahore.
3. Briefly the facts are that on 14-12-2006 at 6-00 p.m. Malik Anwar complainant and Malik Jahangir son of Faqeer Muhammad, Muhammad Saeed son of Anayat Ali were sitting in the room whereas, Malik Jameel Ahmed, Raees Ahmed, Tanveer Ahmed and Faisal were sitting on the cots in the courtyard of the Dera of the complainant, the lights of which were on. Suddenly, Mubashar alias Bashri, Tabasum son of Ali Hussain, Asim s/o Sarwar, Muntazar Mehdi son of Sarwar, Ali Bahadur, Jamal alias Jamala, Rahim Khan and Farooq Khan along with two unknown persons (all armed with Kalashnikovs) made their entrance to the roof of the Dera climbing through the stairs.
Mubashar and Tabasum commanded that all the persons (of the complainant party) be done to death. Where upon the said trespassers started indiscriminate firing from their weapons as a result of which Malik Jameel Ahmed, Raees Ahmed, Tanveer Ahmed and Faisal were seriously injured. The assailants while making firing and raising lalkaras fled away from the site. It has been alleged that due to indiscriminate firing of the accused a sense of fear and insecurity spread in the area. Raees Ahmed died at the site whereas, Malik Jameel passed away during the transit to the hospital and Tanveer succumbed to the injuries in the hospital. Faisal the other victim was still under treatment.
It is added that the motive behind the occurrence was an old enmity between the complainant party and Mubashar son of Muzaffar as well as dispute of land with Aslam alias Achu. It has further been blamed that conspiracy of the occurrence has been hatched on 2-12-2006 at 4-00 p.m. At Dera of Aslam alias Achu by Ahsan, Muntazar Mehdi, Mubashar and Tabasum.
4. Learned counsel for the petitioner contends that the petitioner along with others was only ascribed a general role of firing on the deceased and the one injured P.W, but during the first investigation and in the other investigations conducted by the different Investigating Officers the petitioner has been found innocent and his claim of alibi has been accepted that at the time of the occurrence he was present in the house at a distance of 4/5 kilometers. It is further contended that on the basis of the finding of the different police officers a discharge report was also prepared but the learned trial Magistrate disagreed with the same. It is next contended that during the investigation it was only found that Rahim Khan and Ali Bahadur had facilitated the accused in commission of the crime. It is contended that the petitioner has been falsely implicated in the present case and the case of the petitioner is of further inquiry and fully covered by section 497(2), Cr.P.C. Who may be enlarged on bail. Relies upon Liaqat Ali v. The State 2002 YLR 942.
5. The learned Deputy Prosecutor-General has opposed the bail application by submitting that 87 empties were recovered from the spot and the weapon recovered from the accused were also sent to the office of Forensic Science Laboratory, the report of which shows that out of 87 empties 47 were fired from the weapon recovered from Rahim Khan co-accused.
6. It is contended by the learned counsel for the complainant' that first challan was submitted in this case on 26-3-2007 and abscondence of the accused was unexplained. Relies upon Awal Gul v.
Zawar Khan and others PLD 1985 SC 402. It is also contended that number of empties recovered from the spot shows the implication of large number of accused in the occurrence and nature of the injuries and the medical evidence show that more than two weapons have been used during the incident and deeper merits of the case cannot be considered. It is contended that the plea of alibi was concocted having been raised after four months of the incident and it was supported by the affidavits only and no sufficient evidence, has been brought on the record in this regard. It is next contended that there is one injured eyewitness as well who has supported the prosecution case. Relies upon Sultan Mahmood v. Atta Muhammad and the State 1990 ALD 639. It is lastly contended that the S.S.P. (Investigation) has recommended for reinvestigation of the case and the petitioner is not entitled to the concession of bail and the police opinion is not binding on the Courts. Relies upon Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCM R 68).
7. We have heard the learned counsel for the parties at length and perused the police record with their assistance.
8. It is found that the complainant had involved ten accused persons who according to him while armed with Kalashnikovs had assaulted upon the complainant party. No specific role was attributed to the petitioner. During investigation the police came to a definite conclusion that the petitioner had not participated in the occurrence while accepting his plea of alibi. No doubt the police opinion is not binding on the Court, yet it can be considered for grant of bail, if is based on sound reasoning. In the present case not only the petitioner was declared innocent, but a discharge report was also prepared and submitted before the Illaqa Magistrate who disagreed with the same. During the investigation nothing was recovered from the petitioner and no specific role was ascribed to the petitioner. The tendency has been developed in the society that the innocent persons are also involved in the occurrence by widening the net with a view that nobody is left behind to pursue the case. In such cases a careful scrutiny has to be made as if ultimately the petitioner is acquitted, the period undergone by him will not be compensated in any manner.
There is prima facie sufficient material which makes the case of the petitioner of further inquiry falling under section 497, Cr.P.C. Eighty seven empties allegedly recovered from the spot were sent to the Forensic Science Laboratory on 26-12-2006 and according to the report of the Laboratory the empties had matched with the weapons allegedly recovered from Rahim Khan and Ali Bahadur.
The commencement of the trial is not a ground for refusal of bail to an accused who has succeeded in making out a case of further inquiry and bail cannot be withheld as a punishment.
9. In the circumstances, the petitioner has succeeded in making out a case of further inquiry.
Hence this application is accepted and the petitioner shall be released from jail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (one lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.