' HAFIZ ABDUL REHMAN ANSARI, J.---Zakir Hussain son of Abdullah, petitioner, through this third bail petition under section 497, Cr.P.C., seeks post arrest bail in case F.I.R. No, 164 of 2005, dated 20-4- 2005, got registered by Qasim Ali with Police Station Yousafwala, District Sahiwal, for offences under sections 302/324/452/440/148/149/ 109, P.P.C. Petitioner has been declined bail by the learned Additional Sessions Judge, Sahiwal, vide order, dated 12-6-2009, hence this petition. Earlier bail petition bearing Criminal Miscellaneous No,1272/B of 2006 of the petitioner was dismissed for non- prosecution on 6-2-2006. Second bail petition of the petitioner bearing Criminal Miscellaneous No,726-B of 2008 was dismissed on merits by this Court on 6-5-2008.
2. Allegation against the petitioner, according to the F.I.R., was that the while armed with Rifle, along with nine others co-accused attacked the complainant party. The petitioner fired his rifle hitting Mst. Manzooran Bibi, niece of the complainant, in her abdomen. Similarly, other co-accused also fired at her and she succumbed to the injuries.. Motive for the occurrence was stated to be long standing civil litigation between the parties over possession of some land.
3. Learned counsel for the petitioner submits that petitioner's first bail petition bearing Criminal Miscellaneous No,1272-B of 2006 was dismissed by this Court for non-prosecution on 6-2-2008.
Petitioner's second bail petition bearing Criminal Miscellaneous No,726-B of 2008 was dismissed on merit by this Court vide order, dated 6-5-2008; that Writ Petition No,1825 of 2006 was filed for change of investigation and vide order, dated 27-2-2007 this Court transferred the investigation from Sahiwal to Regional Investigation Branch, Multan. Submits that in the investigation conducted by the Regional Investigation Branch the complainant was found guilty and nominated accused were declared innocent; that the complainant of the F.I.R. Did not assail the finding of the investigation but filed a private complaint; that six persons on the complainant side were challaned on 9-4-2008; that in the investigation main role was attributed to Sakhi Muhammad and Manzoor Chunia; that the complainant side and the accused effected a compromise before the trial Court on 15-7-2009. Makes reliance on the case reported in 1999 SCMR 1271; that the petitioner was found innocent and that finding of innocence of the petitioner was not challenged by the complainant anywhere. Further relies on the cases reported in 2007 PCr.LJ 1542, 2005 PCr.LJ 147- Karachi. Submits that the petitioner is infirm person of 60 years of age and behind the bars since four years and five months; that since the compromise has been effected between the parties, and challan has been submitted against Shakir Muhammad etc, complainant side, so the case of the petitioner is of further inquiry.
4. Grant of bail has been opposed by the learned DDPP assisted by the learned counsel for the complainant. They submit that there is no fresh ground agitated in this petition for grant of bail; that all the facts given in this petition have already been discussed by this Court in the order, dated 6-5-2008 passed in Criminal Miscellaneous No,726-B of 2008; that the ground of old age and infirmity of the petitioner has not been taken by the petitioner in any of the previous bail petitions.
5. I have heard the learned counsel for the parties and perused the record. In the F.I.R. Initially ten persons including the petitioners were nominated and two other persons, namely, Zia Akbar and Shaukat Wahab were later on implicated but when the investigation was transferred to the Regional Investigation Branch, Multan, in that investigation complainant and others were found real culprits instead of the nominated accused in the F.I.R. With regard to investigation of this case it is necessary to discuss the process of the same. Once in the light of order, dated 30-5-2005 passed by the Additional I.G. Police the Investigation was taken up by the In charge, Regional Investigation Branch, Multan, whosoever he may be, the DSP could not further direct the change of investigation to Abdul Majeed and Israr Shah Inspectors without obtaining appropriate orders from the Inspector General of Police Provincial Police Officer) within the meaning of proviso second of Article 18(6) of the Police Order, 2002, and so held by a Full Bench of this Court in the case of Khizar Hayat and others v. I.G. Punjab, etc. (PLD 2005 Lah. 470-Full Bench). Therefore, the order, dated 23- 8-2005 by Masood Javed, DSP/Regional Investigation Branch, Multan entrusting the investigation of the above mentioned case to Abdul Majid and Israr Shah, Inspectors, cannot be considered as a valid and lawful order.
5(sic) In the instant case one report under section 173, Cr.P.C. Was submitted against all the accused nominated in the F.I.R. By the complainant Muhammad Qasim. This investigation was conducted by Abdul Majid and Israr Shah, Inspectors, About this investigation the learned Judge in his order, dated 27-2-2007 -passed in Writ Petition No,1825 of 2006 has also discussed that Qasim Ali, complainant, filed an application before the DIG, Multan for change of investigation, which was marked by him to the DSP/Range Crimes (Masood Javed) who in turn handed over the investigation of the said case to Abdul,Majeed and Israr Shah, Inspectors, This order of the DSP was challenged through the said writ petition on the ground that in terms of proviso Ist and 2nd, to Article 18(6) of the Police Order, 2002 after first change of investigation by respondent No,1 on 30-5- 2005 handing over the same to Regional Investigation Branch, Multan the DSP had neither any jurisdiction to interfere in the same nor he could hand over the said investigation' to Abdul Majid and Israr Shah Inspectors, In consequence of the investigation conducted by the Multan Range Police the nominated accused of the F.I.R. Were found innocent and challan under section 173, Cr.P.C. Was submitted before the learned trial. Court against the complainant party as it was held by the Investigating Officer that Mst. Manzooran Bibi was killed by the firing of complainant party itself and categorically held that Manzoor Chunia and his son Sakhi Muhammad and the present petitioner seeking the bail came to the spot later.
6. The learned Additional Sessions Judges Sahiwal, in his order, dated 15-7-2009 has observed that after appearance of the accused the case was fixed for further proceedings but Falaksher, husband of deceased Manzooran Bibi, Muhammad Imran son of Manzooran Bibi and Muhammad Asif son of the deceased while personally appearing in the Court got recorded their statements that they have effected a compromise with the accused Qasim etc. Above mentioned and have forgiven them in the name of God Almighty. They also stated that they waived their right of Qisas and Diyat and have no objection upon the acquittal of the said six accused persons namely Qasim Ali, Muhammad Nawaz, Zahoor, Sakhi Muhammad, Muhammad Amin and Manzoor being innocent.
Falaksher also stated that he being natural guardian of Muhammad Aamar Abbas minor has also effected compromise on his behalf and also waived the right of qisas and diyat on behalf of the said minor and on his behalf he also has no objection on the acquittal of the accused persons.
7. Now, I come to the instant petition. This is the third petition filed by Zakir Hussain. My learned brother Muhammad Khalid Alvi, J., as he then was, adjudicated the second petition of the petitioner for bail bearing Criminal Miscellaneous No, 726-B of 2008 and vide order, dated 6-5-2008 dismissed the said petition on merits. Said bail petition was A filed prior to submission of the challan against the complainant party, where after the parties on 15-7-2009 effected the compromise, so new circumstances has arisen for the petitioner to move for bail to the learned trial Court on the ground of that challan has been submitted under section 173, Cr.P.C. On the basis of valid legal investigation against Sakhi Muhammad etc. Unless and until first Court of instance is moved on fresh grounds, this ground cannot be agitated directly in the High B Court. The plea that nominated accused in the F.I.R. Were declared innocent and complainant party was found guilty and they were challaned did not get favour of this Court in the order, dated 6-5-2008' as it was not accepted, therefore, it cannot be deemed to be a fresh ground for bail. Plea of old age of the petitioner was also one of the C grounds in the previous bail petition bearing Criminal Miscellaneous No,726-B of 2008 decided on 6-5-2008, same plea cannot be deemed a fresh ground.
8. For the reasons discussed above, and without going deep into the merits of the case, this petition is dismissed. The petitioner is at liberty to move the Court of first instance/the learned Sessions Judge/trial Court on the fresh ground of compromise allegedly effected by the complainant side and accused Sakhi Muhammad etc. With the legal heirs of the deceased Mst. Manzooran Bibi.