' HAFIZ ABDUR REHMAN ANSARI, J.---Petitioner Zafar son of Ulfat All seeks post-arrest bail is case F.I.R.
No, 224 of 2009, dated 12-3-2009, got registered under sections 302/322/34, P.P.C., at Police Station New Multan. Post-arrest bail has been declined to the petitioner by the learned Additional Sessions Judge, Multan, vide order, dated 27-6-2009, hence this petition.
2. The occurrence, as narrated in the F.I.R., is that on 12-3-2009 at about 6/7 P.M., one Zafar (the petitioner) came to the house of complainant Muhammad Ismail, a destitute person, when the inmates of the house were taking dinner. Allegedly, the petitioner asked whether Sardar, complainant's brother, was at home; the complainant told Sardar that Zafar was asking about him; Zafar and complainant's brother started talking and gossiping in the home; after a short-while, Zafar told the complainant that they were going to do some job; afterwards, when at about 9-30 p.m., Zafar came back to complainant's house and told that complainant's brother Sardar was arrested by the police of New Multan Police Station. It is alleged that Zafar asked the complainant to accompany him for release of Sardar; the complainant sent his other brother Mukhtar with Zafar to the Police Station, New Multan, but after about 30 minutes complainant's brother Mukhtar informed that Zafar told that Sardar had been murdered by Muhammad Hatted and he (Zafar) was taking him to Nishtar Hospital, but on the way to the Hospital Sardar expired and he had left his deadbody in mortuary. It is alleged that in the meanwhile complainant and his brother lost temper on hearing the voice, father and his brother Zulifqar also came there and started quarrelling with Zafar' that he had murdered their brother Sardar; on hearing the noise Asghar All son of Mushtaq also attracted there and told Zafar that he had murdered Sardar, whereupon Zafar infuriated and confessed his guilt saying that he and Hanif had murdered Sardar and we may do whatever we can. On 7-4-2009, the police arrested both the accused Zafar and Muhammad Hanif.
3. The learned counsel for the petitioner submits that on 16-4-2009 large number of respectable from both sides joined the investigation. He submits that during investigation it was found that on the fateful day when incident took place, Zafar, his brother Muhammad Hanif along with Sardar deceased were sitting in the office of Karkhana where they all being friends were preparing themselves for participation in Rasm- eHina of their common friend Sohail. Sardar deceased was holding licensed gun of Zafar who took it from him and handed over to Haneef accused; they were not aware with the fact that it was a loaded gun, the gun accidentally went off which hit Sardar deceased who succumbed to the injury there and then. Learned counsel submits that the I.O./Sub Inspector Abdul Rehman concluded that it was not an intentional murder, rather it was Qatl-e- Khata; Fayyaz Ali, In charge Investigation Cell of Police Station New Multan agreed with the finding of the Investigating Officer and as a result of investigation section 302, P.P.C. Was converted into section 322, P.P.C. The learned counsel submits that it was not Qalt-e-Amd, rather it was Qatl-bis- Sabab. On the fateful day they were going to attend Rasm-e-Hina of their common friend Sohail.
Zafar gave his .12 bore licensed gun to Hanif for holding it, who did not know that there was any cartridge in the gun. The gun accidentally went off and hit the deceased. Learned counsel submits that no motive is attributed in the F.I.R.; that the gun was in the hands of Hanif co-accused and not the petitioner that it was accidental death; that challan of the case has not been submitted in the Court, the petitioner is no-more required for any recovery or for further investigation; that the petitioner was arrested on 7-4-2008. He further submits that no one witnessed the occurrence. He adds that it is admitted fact that the petitioner took the deceased Sardar to Hospital. It is established in the investigation that both the accused and the deceased were friends and they were employed in the factory and were preparing to participate in Mehndi ceremony of their common friend. He submits that it is a case of section 322, P.P.C. For which punishment in only Diyat.
4. To the contrary, the DPG along with the complainant's counsel vehemently opposed the bail on the ground that it was an intentional murder; that the petitioner is specifically mentioned in the F.I.R.; that the gun belonged to the petitioner; that the case under section 13/XX/65 of the Arms Ordinance was got registered against him; Zafar handed over the gun to Sardar deceased or Hanif which became cause of death of Sardar. He further submits that challan has been submitted under sections 322/302/34, P.P.C.; that the learned trial Court will determine under what offence charge should be framed. Learned DPG further submits that deeper appreciation of evidence or any finding about the guilt/offence whether it is case of 322, P.P.C. Or 302, P.P.C., will prejudice the case of either side. He contends that the deceased was present in the company of the accused.
Further contends that a single fire hit in the area of heart of the deceased Sardar which was ruptured; that the fire was intentional as it hit the area of heart. Further submits that it is on the record of the case that Sardar expired in the factory where Hanif, Zafar and Sardar being close friends were sitting and where the occurrence took place. Last-seen evidence connects the petitioner with the commission of the offence as the gun which was handed over to Hanif or Sardar belonged to Zafar which was his licensed gun.
5. In the light of the above submissions, I am not inclined to grant bail to the petitioner in the above mentioned case, as Sardar deceased was killed. Deeper appreciation of evidence is not permissible. Whether the fire was accidental or intentional can be determined after recording of evidence. Challan has been submitted under sections 302, 322 and 34, P.P.C. The petitioner is specifically nominated in the F.I.R. And even it is stated in the F.I.R. That the petitioner when reached the house of Sardar deceased, where his other family members had gathered, Zafar petitioner stated that, "I and Hanif have killed Sardar, do what you can do." There is sufficient material to connect the petitioner with the commission of the offence. The judgments 2009 PCr.LJ 187, 2008 M LD 531, PLD 1978 SC 256, 2008 YLR 72, 2004 M LD 335 and 1996 SCM R 1685 cited by the learned counsel do not lend support to the petitioner's case for grant of bail as each and every case has its own facts and circumstances. Findings of the police are not always and in each case binding on the Court. However, it is made clear that the observations made above are tentative in nature, which will not prejudice the case of either side.
6. In view of the above circumstances, this petition fails and the same is dismissed. Anyhow, the learned trial Court is directed to complete the trial within four months.