' SHAHID HAMEED DAR, intend to dispose of Criminal. Miscellaneous No 9099-B of 2011 moved by Muhammad Farooq alias Panna petitioner as well as Criminal Miscellaneous No,10064/B of 2011 qua Muhammad Khalid alias Billa through this single order, as both the petitions arise out of one and the same F.I.R. No,844 of 2008 dated 28-11-2008 under sections 302, 324, 148, 149, 109 P.P.C.
Registered at Police Station, Badami Bagh, Lahore.
2. The allegation against Muhammad Farooq alias Panna (petitioner) is that he along with his co- accused being armed with lethal weapons fired indiscriminately at the ceremony of Rasm-e-Hina of Kafeel Bhatti, and gunned down seven persons with multiple firearm injuries, one of whom namely Ghulam Hussain, electrician succumbed to the injuries at the spot. The motive behind the occurrence pertained to previous pitched enmity between the parties. The complainant alleged in the F.I.R. That the occurrence took place at the abetment of Muhammad Khalid alias Billa (petitioner) and Muhammad Farooq Bhatti accused.
3. Muhammad Farooq alias Panna (petitioner) was arrested on 8-2-2009 and he is behind the bars ever-since. Muhammad Khalid alias Billa (petitioner) was arrested in this case on 20-4-2011. The complainant did not mention in the F.I.R. As to the time, date, place and the names of witnesses qua the factum of hatching up of conspiracy by the accused but he produced two witnesses Shahzad Butt and Muhammad Ashfaq before the I.O. On 6 12-2008 who stated about the factum of hatching up of conspiracy by the accused petitioner in cahoots of his above said co-accused, joined by others mentioned in later part of the F.I.R. They, however, did not offer any explanation as to the period of silence, they observed from the date of the alleged occurrence.
4. Learned counsel for the petitioner Muhammad Farooq alias Panna submits that the petitioner is entitled for grant of bail on the ground of statutory delay in conclusion of the trial which according to her has not even taken off as yet and it is still at the stage of submission of supplementary/ secondary challan against the accused; the trial of the instant case for the first instance was taken up by the Anti-Terrorism Court, Lahore and 4/5 prosecution witnesses had been recorded when learned Special Judge while exercising its authority under section 23 of the Anti-Terrorism Act, 1997 transferred it to the court of ordinary jurisdiction, where no fresh evidence has been recorded to date; the petitioner is not a hardened, desperate or a dangerous criminal as he has not been previously convicted for sentence of death or imprisonment for life nor he had committed an offence punishable under Anti-Terrorism Act, 1997; the delay in conclusion of the trial is not on the part of the petitioner nor any other person acting on his behalf is responsible in this regard; the petitioner despite having undergone 14 days physical remand did not lead to the recovery of any incriminating article nor he had been burdened with any specific role by the complainant. Learned counsel for the petitioner has relied upon case titled Mashkoor v. The State (2009 PCr.LJ 110) and Wajid Ali v. The State (2009 PCr.LJ 275).
5. Learned counsel for Muhammad Khalid alias Billa submits that prosecution is badly short of connecting evidence against the petitioner as the complainant of this case failed w mention the time, date, place, and the names of the witnesses in the F.I.R. Qua the allegation of hatching up of conspiracy by the accused; the abscondence of the petitioner may not be deemed conclusive as petitioner's case calls for further probe into his guilt, within the meaning of section 497(2) Cr.P.C.
6. Qn the other hand, learned counsel for the complainant submits that the petitioner Muhammad Farooq alias Panna joined by his co-accused committed a gruesome offence during the course of which they committed cold-blooded murder of Ghulam Hussain electrician and caused injuries to another six; the mode of occurrence suggests that the accused-petitioner was a hardened and a desperate criminal and his case is hit by the exceptional clause of the 5th proviso to section 497, Cr.P.C; the complainant Abdul Waheed had been murdered on 6-9-2010 by the relatives of both the petitioners so this is yet another factor showing the desperate character of the accused; the trial could not show progress for the simple reason that co-accused of the petitioners had absconded and they were arrested one after the other so it was why, the trial was at the stage of requisitioning complete report under section 173, Cr.P.C; Muhammad Farooq alias Panna accused twice sought bail before arrest and absconded and he was finally arrested on 8-2-2009.
7. After having heard learned counsel for the parties and perused the record, I find that accused Muhammad Farooq alias Panna joined by his co-accused committed a gruesome offence being armed with different weaponry and gunned down seven persons at the scene of festivity of Rasm- e-Hina of Kafeel, the brother of the complainant, one of whom Ghulam Hussain, an electrician, who was installing decorative lights on the house of the intended bridegroom, succumbed to the injuries at the spot. The act of the petitioner and that of his co-accused certainly shows that they are the persons of desperate character who did not think twice before spraying volleys of bullets at the place of occurrence with such indiscrimination that they did not care for the strangers or their foes. Ghulam Hussain, deceased, the poor soul had nothing to do with the rivalry between the complainant and the accused who was present at the spot solely for the purpose of earning bread and butter for his family. Besides him some other persons present in the street namely Farooq, Zaheer and Shahid were also deflated to the ground with firearm injuries by the accused' for none of their fault. The delay in conclusion of the trial may not have been occasioned by the accused- petitioner Muhammad Farooq alias Panna but I do not find his case fit enough for setting him at liberty as the crime committed by him, in the company of his co-accused, renders him a hardened and a desperate criminal. There may not be any special, meaning to the 'adjectives' i.e,, hardened, desperate or dangerous criminal and to formulate an opinion in this regard, the court may take into consideration the mode of occurrence and the way an accused behaved himself at the relevant time of occurrence. The accused-petitioner and his co-accused turned a joy-filled festival into a wailing circumstance within no time. The complainant of this case was also murdered when co-accused of the petitioner absconded. The facts of the case-law relied upon by learned counsel for the petitioner do not assimilate the facts and circumstances of the instant case. The case of the petitioner is hit by the exceptional clause of the fifth proviso to section 497, Cr.P.C, therefore, I am not inclined to accept this application which is dismissed accordingly.
8. So far as Muhammad Khalid alias Billa accused-petitioner is concerned, the only allegation against him is that he along with his co-accused Iqbal Bhatti hatched up a conspiracy and abetted their co-accused to commit the main occurrence. The complainant failed to mention the time, date and place where the conspiracy had been allegedly hatched up by the petitioner and his co-accused nor he could mention the names of the witnesses in the F.I.R. Who allegedly overheard the conspiratorial chat of the accused. A couple of witnesses were produced by the complainant before the Investigating Officer about one month after the occurrence in support of allegation of abetment against the accused-petitioner but none of them offered any plausible explanation as to the period for which they kept quiet. The true import of the delayed statements of the witnesses Shahzad Butt and Muhammad Ashfaq shall be assessed by the learned trial court after recording evidence of the parties at trial. The induction of above said witnesses in the prosecution case by the complainant after significant delay renders the case of the petitioner Muhammad Khalid alias Billa one of further inquiry, falling within the definition of section 497(2), Cr.P.C.
9. For the foregoing reasons I accept Criminal Miscellaneous No,10064/B of 2011 moved by Muhammad Khalid alias Billa and admit him to post-arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of learned trial court.