Petitioner Muhammad Asim seeks post arrest bail in case FIR No, 305, dated 23.6.2005, under Sections 302, 148, 149 PPC, Police Station Dinga, Gujrat. The precise allegation against the petitioner, as stated in the FIR, is that the petitioner, alongwith his co-accused, while armed with deadly weapons attacked the complainant party and made firing in consequence whereof Mst. Nasreen Bibi deceased died.
2. Learned counsel for the petitioner, in support of this bail petition, contends that the petitioner has falsely .been involved in this case on account of mala fide of the complainant and the local police; that no specific overt act is attributed to the petitioner; that at the time of occurrence, petitioner was about sixteen years of age which factum finds support from his birth certificate attached with the petition; that as per post-mortem report, deceased sustained fourteen injuries amongst whom seven were entry wounds; that in all 21 persons were named and four were mentioned as unknown; that the prosecution story is highly improbable; that there is burning, tattooing and blackening on the wounds of the deceased which shows that the deceased was fired upon from a very close range which negates the story of the prosecution set out in the FIR; that the petitioner was arrested on 24.5.2009 i,e, four years after the occurrence but this period of his non-appearance before the police cannot be considered as a ground for denying bail to him and he would place reliance on Mitho Pitafi us. The State (2009 SCM R 299); that co-accused of the petitioner, namely, Mehdi Khan was allowed bail by the learned Additional Sessions Judge vide the impugned order who too remained fugitive from law for a period of four years but the said factor of abscondence was not considered as a hurdle against him; that immediately after the instant incident, a woman by the name of Naziran Bibi of the petitioner side was murdered and the complainant of the instant case is the accused in that case; that seven co-accused with similar role were arrested who faced trial, they were exonerated by all the eye-witnesses and earned acquittal on a petition under Section 265-K Cr.P.C. and that in the afore-referred circumstances petitioner is entitled to the concession of bail after arrest from this Court being a case one of "further inquiry" falling within the ambit of sub-section(2) to Section 497 Cr.P.C.
3. The learned DPG assisted by the learned counsel for the complainant contends that the petitioner is named in the FIR with a specific role which shows that he fully participated in the occurrence; that the ground of juvenility has not taken by the petitioner before the learned trial Court which cannot be argued now which was not even taken in the main bail petition and this Court cannot hold an inquiry regarding age of the petitioner; that the petitioner belongs to a gang who murdered different persons on different occasions including a "behnoi" of the deceased of this case who was murdered at the door of the Court of learned Additional Sessions Judge Kharian; that it is a broad day-light occurrence and there was no chance of false implication of the petitioner; that he has been found guilty during the course of investigation of this case; that he remained fugitive from law for a long period of four years; that the weapon of offence i,e, Kalashinkove was recovered at the instance of the petitioner; that nine crime empties of the said fire-arm were taken into possession from the spot; that he has been challaned in accordance with law and that the offence is a heinous in nature and in the afore-referred circumstances, the petitioner is not entitled to the post arrest bail from this Court.
3-A. Arguments heard. Record perused.
4. Perusal of the FIR shows that the petitioner is named in the FIR with a specific role of firing with a Kalashinkove alongwith his co-accused on the person of the deceased lady who died as a result of those injuries sustained by her on different parts of her body. Apart from above, the petitioner remained absconder for a long period of four years and the judgment cited by the learned counsel for the petitioner in support of his contention on the point of abscondence is distinguishable because in that case no specific role was assigned to the accused and even his presence was not shown at the time of occurrence, while, in the case in hand, petitioner has fully participated in the occurrence, made firing, alongwith his co-accused, with the deadly weapons which fires landed on the person of the deceased who died coupled with the fact that in the said case bail of the accused was declined merely on the basis of his abscondence and not merits. More so, in this case, recovery of a Kalashinkove has been affected from the petitioner, nine crime empties of a Kalashinkove were taken into possession from the spot and he was found guilty during the course of investigation. So far as ground of juvenility under the Juvenile Justice System Ordinance, 2000 was not taken before the learned trial Court which requires a thorough probe as contemplated under Section 7 of the Juvenile Justice System Ordinance, 2000, therefore, the said argument of the learned counsel for the petitioner has no force. So far as arguments of conflict between the ocular account and the medical evidence is concerned, the said point cannot be discussed in detail at this stage, suffice it to say, that it shall be answered by the learned trial Court during the trial. The argument of acquittal of some of the co-accused by the learned trial Court is of no avail to the petitioner because the said co-accused were admittedly acquitted under Section 265-K Cr.P.C. and not on merits. Moreover, the offence alleged against the petitioner falls within the prohibitory clause of Section 497(1) Cr.P.C. In the afore-referred circumstances of the case, this Court is of the prima-facie view that the petitioner is connected with the alleged commission of the offence which falls within the prohibitory clause of Section 497 Cr.P.C, hence, this petition fails and is accordingly dismissed having no merit because it is settled law that an accused cannot be enlarged on bail after arrest merely on account of "further inquiry'. The question of grant of bail after arrest on account of a further inquiry came up for consideration before the Hon'ble Supreme Court of Pakistan in SARDAR MUNIR AHMAD DOGAR VS. THE STATE (PLD 2004 SUPREME COURT 822), wherein, while declining bail after arrest sought on the ground of "further inquiry", at page 828, Apex Court of the country in the judicial hierarchy commented as under:-- "10. It may be noted that now it is a settled principle of law that if an accused succeeds in making out a case of further inquiry, he is entitled for grant of bail because invariably such plea, is available in every case. Reference in this behalf may be made to the case of Asmatullah Khan vs. Bazi Khan (PLD 1988 SC 621) and Nasreen vs. Fayyaz Khan (PLD 1991 SC 412). Relevant para, from the latter judgment is reproduced herein below:- "Lastly, the question of prima-facie, opinion about the guilt of the accused under sub-section (1) of Section 497 Cr.P.C. or sub-section (2) thereof has not been properly examined in the impugned order. The easy contrivance of 'further inquiry' against positive rulings of this Court explaining the provisions of Section 497(2) Cr.P.C. was pressed into service. It has been observed time and again that there would hardly be a case which should not require 'further inquiry', therefore, this element, by itself, is no ground for granting bail under sub-section (2) of Section 497 Cr.P.C. Such orders are, on their very face illegal which do not fulfill the second condition regarding tentative opinion about the prima-facie guilt or otherwise of the accused". With reference to above principle, this Court in the case of Shohaib Mehmood Butt (ibid), which has been relied upon by the learned counsel for the petitioner, has held that every hypothetical question, which can be imagined, would not mean that it is a case of further inquiry simply for the reasons that it can be answered by the Cc in subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of Section 497 Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged " (emphasis supplied)
However, it is made clear that the above observations/findings are only tentative in nature and relevant only for the purpose of bail, therefore, shall not influence the learned trial Court during the trial.