Petitioner Muhammad Bashir by way of the instant petition has prayed for bail after-arrest in case FIR No, 264 originally registered under Sections 337-A(i)/337-F(i)/337-F(v)/337-L(2)/148/149 PPC with Police Station Shah Bhaur, District Okara on 29.09.2009. On the death of injured Mian Khan, the offence under Section 302 PPC statedly was added in the same on 05.10.2009.
2. Briefly the prosecution case as per the FIR is that on 21.09.2009 at about 10.11 a.m. Mian Khan and others while having Sotas, in prosecution of the common object of the ynlawful assembly formed by them, at Killa No, 4 Square No, 16 in the village of the complainant, they all caught him (complainant) from his hair and dragged him towards their Dhari. On his alarm, his sister Mst.
Zikran Bibi and father Mian Khan were attracted to the spot. They tried to rescue him. There upon, they (accused) all with Sotas gave beatings to them, who received injuries on the various parts of their bodies. In the meanwhile, many villagers were attracted to the spot, who rescued them. They (accused) ran away from the spot with their weapons. It was on account of a quarrel having taken place between him (complainant) and the accused on 20.09.2009 at about 03.00 p.m. The accused having grudge against him have committed the said act.
3. After hearing the learned counsel for the parties and going through the record, I find that it is amply clear from the very FIR itself that no specific injury either to the complainant or his aforesaid sister and father has been ascribed to any of them (accused). It may be relevant to mention here with concern that there were in all twelve accused in this case. Eight of them including his own self (petitioner) were nominated in the same (F.I.R) and four of them were unknown persons. It is everybody's case before me that six out of the nominated accused compromise, upon which report was called from the learned District & Sessions Judge, Faisalabad regarding the genuineness or otherwise of the compromise, who vide letter No, 2-Ahlmad dated 9.1.2010 has reported that the deceased Muhammad Nabeel was bachelor and was survived by his father Muhammad Jameel being his sole legal heir having no objection to the acquittal of the appellant after having forgiven him in the name of Almighty Allah, while mother of the deceased has already died. Learned Deputy Prosecutor General and learned Assistant Advocate General Punjab after having gone through the said report have submitted that the State has no objection to the acceptance of the compromise and consequent acquittal of the respondent/appellant from the case. This Court vide judgment dated 12.01.2010 after having gone through the report of the learned Sessions Judge and also statements annexured therewith come to the conclusion that the compromise has been affected between the parties for mutual harmony and thus by accepting the same, the appeal has been allowed and the impugned judgment dated 27.1.2009 has been set aside with the result that the appellant acquitted of the charge and death sentence was not confirmed.
3. Now through the instant application, the applicant/ complainant of the case has submitted that he never entered into compromise with the accused person; never appeared before the learned Sessions Judge Faisalabad to make a statement compounding the offence and that he also never signed or thumb marked the said statement and thus he has prayed for initiating proceedings against Respondents No, 2 to 5 under Section 476-A Cr.P.C.
4. This Court vide order dated 10.2.2010 passed the following order:-- "Before taking any action, we send this matter to the learned Sessions Judge, Faisalabad, who will look into the matter, get specimen signature and thumb impression of the applicant and then send the same alongwith signature and thumb impression of the applicant on the statement made before him compounding the offence and also his identify card, Nikah Nama, Bank Account and for comparison report to the Technical Handwriting Expert FIA Headquarter Islamabad."
In compliance of the above order, the learned Sessions Judge has sent a detailed inquiry report and the operative part thereof read as follows:-- "In view of above I am confirmed in my view that Muhammad Jamil complainant/father of deceased never appeared before this Court; he did not get record his statement; he did not sign or put his thumb impression on his statement at all; some fake person was produced in the Court who had also forged signature and thumb impression of Muhammad Jamil Convict and Sarfraz All Khan Ex. Nazim, prima facie are responsible for all this wrong."
The learned Sessions Judge, in order to avoid from any such type of incidents in future, has also made certain proposals qua recording of the statements in compromise case not only in the matters before the this Court but also in original jurisdiction.
5. From the above narrations of facts coupled with the report of the learned Sessions Judge, we appreciate the efforts made by the learned Sessions Judge in finding out the truth that instead of Muhammad Jamil/complainant (father of the deceased), . some fake person has entered appearance showing himself to be the complainant, who had also forged signature and thumb impression of said Muhammad Jamil, resultantly, he has prima facie found responsible Respondent No, 2 and Sarfraz Ali Khan Ex. Nazim for all what has been B done. However, this Court is of the view that not only the convict and Sarfraz Ali Khan Ex. Nazim there are other persons who have played active role in releasing the convict by making false statement as also signing, thumb marking the statement and identifying the complainant, thus they all are responsible in this behalf.
As regards the prayer of the learned counsel for the applicant qua initiation of proceedings u/S. 476-A Cr.P.C. against Respondents -No, 2 to 5 is concerned, it is stated that the criteria and procedure for initiating action in such like matter is laid down in the provisions of Section 476 Cr.P.C, which reads as under:--
476. Procedure in cases mentioned in Section 195.--(1) When any offences referred to in Section 195, sub-section (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.
(2) When in any case tried under sub-section (1), the Court finds the offender guilty, it may, notwithstanding anything contained in sub-section (2) of Section 262--
(a) pass any sentence on the offender authorized by law for such offence, except a sentence of death, or, imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not September 2007 before this Court wherein it was contended in Paragraph No, 2 of the petition that inspite of restraining order dated 19.07.2007, the respondents in presence of guards at site not only removed the machinery and assets but also taken all furniture, doors, windows, electric appliances and carpets of the mosque situated in the factory premises in the 2nd week of 2007.
4. On the basis of factual contention raised in Paragraph No, 2 of the instant petition, the learned counsel for the petitioner argues that order dated 19.07.2007 passed by this Court has been violated by the respondent. The contents of Paragraph No, 2 of the instant petition do not specify the date on which the alleged vidation of the order dated 19.07.2007 attributed to the respondent was committed; even the affidavit which is annexed With the petition of one Mujahid Abbas Shah son of Sajjad Hussain the attorney of the petitioner's company has not specified the date and time of the commission of alleged violation of the injunctive order passed by this Court.
5. Similarly, none of the guards in whose presence the machinery/assets etc. were allegedly removed from the site in question, has sworn any affidavit in support of this petition. A period of about three years have lapsed after the moving of the criminal original but in no manner this petition has been sought to be amended so as to specify the date and time nor any effort has been made to place on record the affidavits of guards whom the petitioner claims to be present at the time of alleged violation.
6. The reply submitted by the respondent/auction purchaser has controverted the contents of instant petition. The criminal original is vague and no supportive affidavit of the guards, who were allegedly present at the time of removal of machinery as per contents of Paragraph No, 2 of the instant criminal original, have been produced to support the contents of the petition in hand. We have also been informed that decree in question has also been executed and the objection petition moved by the judgment debtor/appellant was dismissed by this Court through order dated 23.04.2008 by .a learned Division Bench of this Court and even during the hearing of EFA on 23.4.2008 no arguments were forwarded by the parties before this Court that any violation as alleged has taken place in fact of the injunctive order passed by this Court in EFA No, 271/2007 on CM. No, 1/C2007.
7. In view of all these circumstances, we are not convinced of the bona fides of the instant criminal original which is dismissed with no orders as to costs.