' SARDAR MUHAMMAD SHAMIM KHAN, J.---Muhammad Nawaz and Zulfiqar, petitioners seek post- arrest bail in a case registered against them vide case F.I.R. No, 271 of 2009 .Dated 13-7-2009 for the offences under sections 302, 34, 337-A(i) and 337-F(i) of P.P.C., at Police Station Sarai Sidhu, District Khanewal.
2. According to F.I.R. On 13-7-2009 at about 09.30am, Muhammad Nawaz and Zulfiqar, petitioners armed with guns were inflicting injuries on the person of Haq Nawaz, injured P.W. Allah Ditta, brother of the complainant admonished them, thereafter, both petitioners inflicted fire arm injuries on the person of Allah Ditta, deceased, with their respective weapons, which landed on the backside of his chest. Allah Ditta, deceased succumbed to his injuries at the spot. It is further alleged in the F. I. R.
That in the meanwhile, Muhammad Aslam and Waryam came over there and started entreating pardon from the complainant and in the heat of passions, Muhammad Aslam and Waryam sustained minor injuries at the hand of complainant party.
3. Learned counsel for the petitioner submits that regarding the same occurrence, complainant Muhammad Ejaz filed a private complaint against the petitioners and eight others accused persons wherein the version of prosecution was changed by the complainant; that during investigation police came to the conclusion that one Fakhr Abbas and Muhammad Afzal caused the death of Allah Ditta, deceased and petitioners were declared innocent by the police during investigation and this finding of the police was verified by the DSP/SDPO concerned; that during investigation nothing was recovered from the possession of the petitioners; that it was a case of two versions as Muhammad Aslam and Waryam sustained injuries at the hands of complainant party and in this regard a cross version, was lodged at the instance of Waryam on 21-7-2009 for the offence under sections 324, 148 and 149 of P.P.C. Against Allah Bakhsh, Haq Nawaz and others and during investigation cross version of Waryam was found to be correct by the I.O.; that petitioners were arrested on 1-9-2009 and they are behind the bars since then, so, he has prayed for grant of bail to the petitioners.
4. Learned D.P.G. Assisted by learned counsel for the complainant contended that both petitioners were specifically nominated in the F.I.R.; that there is specific allegatio against them that they were armed with guns and fired at Allah Ditta, deceased; that ocular account furnished by the prosecution finds corroboration by the medical evidence; that motive of the occurrence is also attributed to the petitioners; that although the complainant filed a private complaint but in the said private complaint only petitioners are alleged to have fired at the deceased, so, there is no conflict between F.I.R. And complaint filed by the complainant qua the allegations against the petitioners; that findings of the police that Fakhr Abbas and Muhammad Afzal fired at the deceased is not based on any cogent material and that the finding of the police is also not binding upon the Court; that cross version - initiated at the instance of Waryam is not the cross version of the instant occurrence; that the offence alleged against the petitioners falls within the purview of prohibitory clause of Section 497 of Cr.P.C., so, the petitioners were not entitled to the grant of bail.
5. I have heard the arguments of learned counsel for parties and perused the record.
6. This occurrence took place on 13-7-2009 at about 9-30 a.m., whereas matter was reported to the police at 10-30 a.m., so, this was a promptly lodged F.I.R. It was a day light occurrence, so, there was no chance of any misidentification of the accused persons. Zulfiqar and Muhammad Nawaz, petitioners injured Haq Nawaz, maternal nephew of the complainant on the dispute of turn of water. Allah Ditta, deceased intercepted and admonished the petitioners on their aforementioned act. Immediately thereafter, both petitioners, who were armed with guns allegedly caused fire arm injuries on the person of Allah Dina, deceased which landed on backside of his chest and Allah Ditta, deceased succumbed to his injuries at the spot. Perusal of post mortem report of the deceased reveals that deceased received fire arm injuries on the backside of his chest, which is in line with the prosecution version. So far as the contention of learned counsel for the petitioners that complainant filed a private complaint and he implicated eight more accused persons in this occurrence and prosecution changed its version, is concerned, it is against the record as complainant in his private complaint has levelled same allegations that Zulfiqar and Muhammad Nawaz fired with their respective guns at Allah Ditta, deceased, who succumbed to his injuries at the spot. Although during investigation police came to the conclusion that petitioners were not involved in the commission of murder of Allah Ditta, deceased and both petitioners were declared innocent by the police and according to the finding of the police Fakhr. Abbas and Muhammad Afzal committed the murder of Allah Ditta, deceased, yet perusal of record reveals that police did not collect any evidence in support of its finding that Fakhr Abbas and Muhammad Afzal caused the death of Allah Ditta, deceased. Opinion of police is not based on any cogent material. Even otherwise ipsi-dixit of police is not binding on the Court. So far as cross version initiated at the instance of Waryam is concerned, according to said cross version Allah Bakhsh inflicted Kassi blow on the head of Muhammad Aslam whereas Haq Nawaz inflicted SOTA blow on the head of Muhammad Aslam, who fell on the ground and other accused persons also inflicted injuries on the person of Muhammad Aslam. This cross version did not disclose that by whom and under what circumstances the death of Allah Ditta, deceased was caused. The injuries on the person of Muhammad Aslam and Waryam have been duly sustained injuries at the hands of complainant party when Allah Ditta, deceased had already expired. Mere non-recovery of guns from the, possession of the petitioners is no ground to enlarge the petitioners on bail. Offence alleged against the petitioners falls within the purview of prohibitory clause of section 497 of Cr.P.C.
7. For what has been discussed above, I am of the considered view that the petitioners are not entitled to the grant of post-arrest bail, hence, petition in hand is dismissed.