' SAGHEER AHMAD QARI, J.---Petitioner Mehboob Alam has moved this petition for grant of post- arrest bail in case F.I.R. No, 115 of 2011 dated 18-5-2011 under sections 302, 324, 148, 149 read with section 109, P.P.C. Registered at Police Station Shah Bhoor District Okara.
2. F.I.R. Was lodged by Allah Ditta son of Jalal Din on 18-5-2011 at 6-15 p.m. Mentioning the facts that he was a zamindar and resident of Chak No, 40/3-R. He purchased agricultural land in Chak No,58- D, Police Station Chakbaidi and that land was being cultivated by Saif Ullah, his son who got sanctioned electric connection for installation of tube-well. On that day at 4-00 p.m, complainant's sons Saif Ullah and Habib Ullah along with Muhammad Yaqoob son of Allah Ditta and Umar Hayat son of Faiz Khan after getting issued different electric appliances for installation of tube-well from the office of WAPDA, Okara by motorcycles were going to. Chak No, 58-D. Saif Ullah and Umar Hayat were in front while they were being followed by Habib Ullah and Muhammad Yaqoob at a small distance. When they reached at 36-Jorha Road, Okara in the area of Chak No, 42/2-L, suddenly Mehboob Alam (present petitioner), Ahmad Saeed son of Muhammad Aslam armed with .30 bore pistol, Noor Ahmad son of Asad Ullah armed with Carbine along with three unknown armed persons found present there on the Way. On seeing Saif Ullah and others, Noor raised Lalkara that their enemies had reached there, they be not spared. Thereafter, Mehboob Alam and.
Ahmad Saeed started indiscriminate firing on Saif Ullah and UmarHayat hitting Umar Hayat on his back while Saif Ullah received bullets on his right ear, left arm as well as on other different parts of body who both fell seriously injured from the motorcycle on the ground. In the meanwhile, Habib Ullah and Muhammad Yaqoob reached and they witnessed the occurrence. On seeing them accused while leaving Saif Ullah and Umar Hayat in injured condition along with their respective weapons by motorcycles fled towards Chak No, 44/2-L. Habib Ullah and Muhammad Yaqoob handled Saif Ullah and Umar Hayat in injured condition but Saif Ullah succumbed to injuries at the spot. It was further recorded in the F.I.R. That about two months back it was a gathering of family members in the marriage ceremony of daughter of Bashir Ahmad when Jafar Ali son' of Hassan and Rai Mushtaq son of Mian Muhammad heard the conversation between Umar Hayat and Fakhar Hayat who were asking Mehboob Alam (present petitioner) and Ahmad Saeed etc. While present in "Baithak" that they would proceed for performance of Umrah and they should kill Saif Ullah in the absence. Motive for the occurrence was as mentioned was a dispute over joint land owned by the complainant and Umar Hayat etc. As Umar Hayat etc. Wanted to get their share according to their own choice and place, which was refused by Saif Ullah and due to that reason they committed his murder. This occurrence was informed to the complainant by his son Habib Ullah and, he was going to lodge report when police officer met him on the way and he lodged report.
3. Learned counsel for the petitioner contends that the petitioner was arrested on 16-7-2011 and remained on ,physical remand till 29-7-2011 but nothing was recovered from his possession; that during investigation I.O. Found the petitioner not present at the spot which fact is incorporated by the I.O. In his report under section 173, Cr.P.C; that statement of injured P.W. Was recorded on 1-6- 2011 whereas occurrence took plaee'on 18-5-2011 and that delay itself is creating doubt especially in the light when he was observed by the Medical Officer in MLR as conscious and oriented; that no specific injury is attributed to the petitioner; that private complaint was filed by the complainant where story was improved by inserting the names of two witnesses namely Roshan Bibi and Pathani Bibi in respect of motive; that the petitioner is an Advocate and he has been falsely involved in this case on the basis as his brother was a witness in a murder case against the complainant party and for that reason the petitioner has been roped in this case. .Prayed that case of the petitioner is of furtther inquiry falling under section 497(2), Cr.P.C. Prayed that bail be allowed.
4. Conversely, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has vehemently opposed this petition on the grounds that F.I.R. Was lodged promptly with a specific role given to the petitioner of firing on the injured and the deceased; that statements of the witnesSes recorded under section 161, Cr.P.C. Fully support the complainant version and same version was reiterated in private complaint filed by the complainant; that ipsi dixit of the police is not binding on the Court and statement of P. Ws. Cannot be ignored in the light of the opinion of the police; that plea of alibi was, raised by the petitioner which was weighed by the I.O. But it can be looked into by the learned trial Court. While relying on "KHALIDA BIBI v. JVADEEM BAIG" (PLD 2009. Supreme Court 440), "AKHTAR ALI KHAN v. THE STATE and another" (2010 PCr.LJ 1386), "MAIRAJ and another v. THE STATE" (2007 YLR 2081), "MAMARAS v. THE STATE and others" (PLD 2009 Supreme Court 385), "UMAR FAROOQ v. THE STATE and another" (2011 M LD 822), "TANVIR v. THE STATE and others" (2011 YLR 1719) and "NAWAB KHAN v. THE STATE and another" (2010 PCr.L.I 1463) prayed that bail be dismissed.
5. I have considered the 'arguments advanced by learned counsel for the parties and have gone through the record.
6. According to the F.I.R.Complainant Allah Dina son of Jalal Din has specifically levelled allegation against the' petitioner Mehboob Alam showing his presence at the spot along with his co-accused and it is' alleged that he along with his co-accused fired with .30 bore pistol on Saif Ullah deceased and injured Umar Hayat P.W. The statement of complainant is further supported by .Both of the witnesses whose statements under section 161, Cr.P.C. Have been recorded. Injured P.W. Urnar Hayat whose presence at the spot in' view of his MLR at this stage, prima facie, cannot be challenged, has also reiterated the stand recorded in the F.I.R. The argument advanced by learned counsel for the petitioner that the complainant subsequently has improved his version while inserting the names of two witnesses. Namely. Roshan Bibi and Pathani Bibi to prove the motive part of the occurrence itself in these circumstances at this stage cannot be looked into as it requires deeper appreciation of the evidence which can be done by the learned trial Court. As far as the plea of alibi raised by the petitioner is concerned, no doubt, he raised during investigation that on the alleged day of occurrence he was present in Police Station at Depalpur but no proof whatsoever in this respect neither was produced or any statement of any of the police officials of said Police Station was ever recorded. The data about the' use of mobile phone by the petitioner showing his presence at some other place at this stage, prima facie, is not sufficient to prove his plea which also requires recording of evidence at trial stage. As far as ground agitated by the learned counsel for the petitioner which has some substance that statement of Umar Hayat the injured P.W. Was recorded by the Investigating Officer under section 161, ' Cr.P.C. On 1-6-2011 although according to the MLR he was conscious and oriented but this aspect again only can be seen after recording of the evidence as at this stage this Court cannot go into these aspects which are touching the merits of the case.
In the judgment cited by learned counsel for the complainant reported as "KHALIDA BIBI v. NADEEM BAIG" (PLD 2009 Supreme Court 440) their Lordships of the Hon'ble Supreme Court of Pakistan while discussing the principles of grant of bail especially about the cases of further inquiry observed:- "If the plea on the -basis of which the accused had been released on bail was accepted, would impugn the version of the eye-witnesses which had been discarded at the initial stage of the case by observing contra to the version of ocular witnesses; which course was at all not permissible and later on no such evidence was furnished, then it would not be free from doubt and in accord with S.497(2), Cr.P.C.---Evidence of eyewitnesses, in the present case, had been discarded even in view of the medical opinion by the Trial Court, as well as by the High Court:- Police, during the investigation was not required to examine hundreds of people in order to inquire as to whether the accused was involved in the offence or not-- Police was required to consider the material available on the record and not to disregard the eyewitnesses in support to say that he was not involved in the commission of the offence, and thus, would not only be entitled to grant of bail but at the same time to earn acquittal-- Practice adopted by Trial Court as well as by the High Court, in peculiar circumstances of the case, was not appreciated by the Supreme Court---Reasons on which bail had been extended to the accused were not sustainable in the eye of law---
7. As far as the opinion by the Investigating Officer is concerned, wherein he observed and submitted report under section 173, Cr.P.C. That piesence of petitioner was not found at the spot rather he being a Conspirator abated the commission of the offence, ipse dixit of police is not binding on the Court and even otherwise, this opinion need not to be looked into at this stage as it can 'only be seen by the learned trial Court after recording evidence.
8. For what has been discussed above, when specific allegation levelled against the petitioner about the commission, of the offence, prima facie, is substantiated through the statement of eye- witnesses, therefore, at this stage, the grounds taken and urged cannot be looked into. Resultantly, instant petition stands dismissed.