Through this application under Section 497(5) Cr.P.C. the petitioner seeks cancellation of bail granted to Respondents No, 1 to 3, who are accused in case FIR No, 617 of 2009 dated 02.12.2009, registered at Police Station Badami Bagh, Lahore, under Sections 302, 324, 148, 149, PPC read with Section 7 A.T.A. 1997.
2. Briefly, the facts of the case as contained in the FIR lodged by the petitioner / complainant are that on 2.12.2009 at about 12:30 noon he reached the street of his house in the company of his son Wajahat Hussain from his college and found some persons gathered there; Muhammad Pervez, paternal nephew of the complainant, informed him that the accused Yasin and Noman alias Nona had abused and slapped him early in the morning on the false pretext that he was obstructing the sale of their house; due to which the accused Yasin, Noman alias Nona along with his friends Liaqat Ali alias Lalu. Shoukat Ali, Sarwar alias Shera. Rafaqat Ali sons of Muhammad Aslam and Muhammad Naeem Butt had come again there to quarrel; the complainant alleged that he also intervened and tried to patch up the matter but the accused Muhammad Yasin, abused him arid commanded his brother Noman alias Nona and his friends not to let the complainant party go alive whereupon, all the accused, with their respective weapons, made straight firing; the fire of Muhammad Yasin hit Wajaht Hussain son of the complainant who subsequently died, the fire of Noman accused hit Muhammad Aamir Hussain, neighbour of the complainant who also subsequently expired; Liaqat Ali alias Lalu hit with his fire at Sajjad son of Muhammad Ashraf a passerby (minor) who also expired, the accused Muhammad. Naeem Butt fired against Muhammad Pervez and injured him who too expired subsequently. The remaining accused made indiscriminate firing while standing in the street and thereby injured Abid Hussain son of Sadiq Ali, Qaisar and Muazzam Ali (a minor) son of Ghulam Mustafa. The injured Qaisar also subsequently expired due to injuries. In this way, in this occurrence, five persons were murdered and two sustained injuries. The occurrence was witnessed by the complainant, Zulfiqar Ali son of Ismail, Mumtaz and Sajid Hussain who saved their lives by lying on the ground. It was alleged that all the accused were armed with pump action guns, pistols, etc. who by making indiscriminate firing succeeded to escape away.
By way of supplementary statement of PWs namely Muhammad Azam complainant, Muhammad Ashraf, Shakil Ahmad and Muhammad Ijaz dated 14.12.2009, the accused Tanveer alias Billa Limmu Wala, Kashif alias Hero and Usman were also implicated in the alleged indiscriminate firing.
3. Learned counsel for the petitioner contends that the learned trial Court has granted bail to Respondents No, 1 to 3 only on the plea that they were declared innocent during the course of investigation. It is. submitted that when the ugly design, ulterior motive, desire for pecuniary gains of the Investigating Officer disclosed upon the complainant, he immediately urged the matter before the higher police officers and the investigation was entrusted to SP (Investigation) who probed inter the matter and made strong condemning report against the Investigating Officer Muhammad Ashraf Inspector and found that despite the overwhelming direct evidence connecting the accused-respondents with the commission of the offence, the condemned Investigating Officer dishonestly interpolated the evidence and declared the respondents/accused innocent just to facilitate them; that during the subsequent investigation these accused had rightly been found guilty of the offence as specific roles were ascribed to them; that they made firing with different sort of weapons which resulted into the murder of Aamir, Qaisar, Wajahat, Pervaiz and Sajjad who died due to the injures received by them. whereas Moazzam and Abid Hussain also received injuries, as such the medical evidence supports the ocular account; that offence with which the respondents are charged falls within the prohibitory clause of Section 497(1) Cr.P.C., and the respondents /accused are not entitled for grant of bail and requests that their bail may be cancelled/recalled. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court of Pakistan reported in 2007 SCM R 482 in support of his contentions.
4. The learned counsel for the respondents has submitted that they have been falsely implicated in this case with mala fide on the part of the complainant who has widened his net by involving all the male members of the accused as Respondents No, 1 to 3 are real brothers; that no specific role has been attributed to the respondents by the eye.. witnesses; challan has been submitted in the Court and respondents are facing trial and no allegation of misuse of concession of bail has been levelled against them; that the respondents remained on physical remand for 14 days and nothing was recovered from their possession. It is also contended that a number of persons had appeared from both sides during the investigation and then respondents were declared innocent by the Investigating Officer and that they have not been declared innocent in a slipshod manner. It is contended that Rafaqat and Shafaqat are residing in the same vicinity but they were residing at some other places while Muhammad Sarwar alias Shera respondent is residing at Badami Bagh, Lahore.
5. We have heard the learned counsel for the parties and perused the record. The incident in the present case took, place at 2:30 p.m. whereas FIR was registered on 02.12.2009 at 3/40 a.m. on the statement of the petitioner. In the present incident five persons have lost their lives and two have received fire-arm injuries. Respondents No, 1 to 3 have been specifically named in the FIR with a specific role of causing fire-arm injuries to Abid and Qasiar. So far as the innocence of the respondents is concerned, the ipsi dixit of the police is not binding on the Court, even otherwise the plea of alibi taken by the respondents is not beneficial as the first Investigating Officer had not conducted the investigation honestly and fairly. There is sufficient material to connect the respondents with the commission of the crime, in which, five persons lost their lives and two have received fire-arm injuries. There is no enmity between the parties to falsely implicate the respondents in the present occurrence if they have not participated therein. Under the above circumstances, prima-facie, the respondents are involved in a heinous criminal case, which falls within the prohibitory clause of Section 497(1) Cr.P.C. and it is a fit case for cancellation of bail. This application is accepted and the bail already granted to the respondents is hereby recalled. They shall be committed to custody. However, it is made clear that the observations made hereinabove are tentative in nature and are not designed to influence the course of trial in any manner.