Seeks bail after arrest in case FIR No, 12 of 2007 dated 26.02.2007 u/Ss. 302, 324, 337-A(i), 337-F(i), 337-F(iii), 337-F(v), 427, 404, 148, 149 P.P.0 registered at Police Station Lawa, Tehsil Talagang, District Chakwal on the complaint of Khalid Mehmood.
2. Succinctly, the prosecution case as alleged by Khalid Mahmood, complainant is that Shaukat Ali (petitioner) armed with Kalashanikov in cahoots of his armed co-accused made incessant firing at the vehicles driven by the complainant party, as a result of which, 7 persons Gohar Khan, Muhammad Yar, Yaqub Khan, Muhammad Ilyas, Lal Khan, Muhammad Nasir and Khalid Saeed lost their lives and four others namely Khalid Mahthood, Muhammad Haneef, Sajid Akhtar and Muhammad Ijaz received multiple fire-arm injuries. The motive behind the occurrence pertained to previous enmity between the parties, which had already taken the lives of five persons on both the sides.
3. Learned counsel for the petitioner submits that there are four sets of accused and each one has been burdened with a separate role by the complainant; Aitbar Khan and Muhammad Riaz co- accused of the petitioner had been admitted to post arrest bail (Cr1. Misc. No, 337B/2010) and (Crl.
Misc. No, 1885-B/2010) vide orders dated 24.03.2010 & 19.01.2010 respectively; the complainant after registration of the FIR made a supplementary statement on 26.02.2007 wherein he alleged that Aitbar Khan and Muhammad Riaz had fired effectively with their weapons on Yaqoob, Ilyas, Khalid Saeed deceased and also caused injuries to the injured PWs Khalid and Sajid; all the witnesses in their statements under Section 161 Cr.P.C. had categorically supported the supplementary statement of the complainant whereby they burdened Aitbar Khan and Muhammad Riaz with the liability of committing the murder of the deceased; Muhammad Hanif and Muhammad Ijaz PWs, the drivers of the vehicles, in their statements under Section 161 Cr.P.C. have not nominated the accused-petitioner rather they have stated that the occurrence was committed by some unknown accused; the previous enmity between the parties is admitted and only a joint and vague role has been assigned to the accused-petitioner; the orders through which Aitbar Khan and Muhammad Riaz, Co-accused of the petitioner had been admitted to bail are still intact, so the petitioner having an identical case deserves the same treatment and that equity of treatment; lastly contends that the case of the petitioner calls for further inquiry into his guilt and he may be set at liberty. Relies upon "Munawar Khan vs. The State" (2010 YLR 1815), 'Muhammad Aslam and another vs. The State through A.G, Punjab and another" (1997 SCM R 251) and "Jaffar and others Vs. The State" (1980 SCM R 784).
4. On the other hand, learned Deputy Prosecutor General assisted, by the learned counsel for the complainant has vehemently opposed the grant of bail to the petitioner with the contention that the role of the petitioner is not at par with the role of his co-accused Aitbar Khan and Muhammad Riaz, who had been granted post arrest bail by this Court; an active role had been assigned to Aitbar Khan and Muhammad Riaz only through a supplementary statement of the complainant which formulated the basis for granting them bail after arrest; further submits that while granting bail to the above said co-accused it had been observed by this Court that the prosecution witnesses had not alleged any where in their statements that they had aimed their weapons at the deceased or the injured PWs during the occurrence; specific role has been alleged against the petitioner in the FIR as he alongwith his co-accused Liaqat Ali, Ahmad Sher and others has been saddled with the liability of making direct firing upon Gohar Khan and Muhammad Yar, as a result of which, both lost their lives and due to their firing injuries were also caused to Muhammad Hanif and Sajid PWs; the role of the accused-petitioner is clearly distinguishable from the role of their released co-accused; the dictum of consistency is not applicable in the instant case; the accused- petitioner was arrested on 01.2.2009 and he led to the recovery of the crime weapon alongwith 40 live bullets; the trial has already commenced and five prosecution witnesses have been recorded by the learned trial Court. Relies upon "Sardar Munir Ahmad Dogar Vs. The State" (PLD 2004 Supreme Court 822), "Ghulam Sarwar Vs. The State" (2010 M LD 680), 'Muhammad Aslam Vs. The State" (2010 PCr.L.J 914), "Umer Hayat and another vs. State" (2009 PCr.L.J 1058), "Pervez and 2 others vs. The State" (2010 M LD 1300), "Ramzan and 3 others vs. The State" (2008 YLR 2086) and "Suhrab and 3 others vs. The State" (2001 P Cr. L.J 366).
5. I have heard learned counsel for the parties and perused the record.
6. It has been categorically alleged by the complainant in the FIR that Shaukat Ali, petitioner . alongwith his co-accused being armed with Kalashanikoves fired incessantly at one of the vehicles wherein Gohar and Muhammad Yar were seated and thereby caused their instantaneous death and injuries to above named PWs. The medical evidence supports the allegations contained in the FIR. Aitbar Khan and Muhammad Riaz co-accused of the petitioner had been admitted to post arrest bail mainly on the ground that the complainant had not alleged in the FIR that they had aimed their weapons at the deceased or had fired effectively during the occurrence and that the supplementary statement of the complainant being innovative, could not be given any weight. As per FIR the role assigned to the accused-petitioner as regards to the role of the two above named accused who had been admitted to post arrest bail by this Court, is easily distinguishable. The petitioner absconded after the occurrence and remained a fugitive from law for about two years.
He was arrested on 01.02.2009 and thereafter he led to the recovery of a kalashanikov and 40 live bullets which is yet another circumstance going to the corroboration of the allegations contained in the FIR. The fact that the injured PWs in their statements u/S. 161 Cr.P.C.. had supported the version of the complainant, contained in the supplementary statement qua the above said co- accused of the petitioner, shall be taken care of by the learned trial Court during the course of the trial.
7. It Las been held time and again by this Court as well as by the apex Court of the country that a supplementary statement is a recent innovation, not recognized by law, which has been devised by incompetent, incapable and dishonest police officers to cut short the process of investigation without bearing in mind that such a short cut adopted by them is generally destructive to the case of the prosecution. Even otherwise a supplementary statement cannot be read as an integral part of the FIR and at the most, it has to be considered a statement recorded u/S. 161 Cr.P.C. It was a daylight occurrence. The parties having been locked in previous enmity interse, knew each other, so there is no probability of mistaken identity of the accused.
8. It has been submitted by the learned counsel for the complainant that the trial has commenced and five prosecution witnesses have already been recorded so to discuss or dilate upon the merits of the case, though tentatively, might prejudice the case of any of the two sides. The petitioner absconded after the occurrence. He was arrested more than 2 years after the registration of the FIR and in the meanwhile, the police had complied with the requirement of Section 87 Cr.P.C. A fugitive from law who cannot plausibly explain his longstanding abscondence loses some of his normal rights guaranteed under the substantive law as well as the procedural or the ordinary law.
There is hardly any circumstance to believe that the petitioner's case is open to further inquiry as enunciated u/S. 497 (2) Cr.P.C.
For what has been discussed above, this petition is dismissed.