' SHAHID HAMED DAR, Mushtaq Ahmad petitioner seeks bail after arrest in case F.I.R. No,292, dated 30-7-2011, under section 302/34, P.P.C. Registered at Police Station Kaloor Kot, District Bhakkar on the complaint of Tariq Mahmood.
2. The allegation against the petitioner is that he being armed with a .12 bore gun joined by his co- accused also armed with identical weapon effectively fired at the time of occurrence and thereby committed the murder of Altaf Hussain, father of the complainant; the role against the petitioner is that he raised lalkara, whereupon his accused resorted to straight firing at the deceased and he himself made a fire shot which landed at the middle, finger, of left hand of the deceased.
3. The postmortem examination report of the deceased discloses eight firearm injuries, out of which, injuries Nos.7 and 8; may be attributed to the petitioner, which show fracture of the underlying bone of middle finger of the left hand.
4. Learned counsel for the petitioner submits that the petitioner joined investigation on the very first day and raised his plea of innocence in support whereof he produced two witnesses Hasham and Wahid Bakhsh which led to formulation of an opinion by the Investigating Officer qua innocence of the petitioner; a discharge report was prepared by the Investigating Officer which was not agreed to by the learned Magistrate and he has been placed in Column No,2 of the challan under section 173, Cr.P.C.
5. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant submits that the petitioner is nominated with specific role in promptly lodged F.I.R.; the medical evidence is consistence with the ocular account, furnished by two witnesses Sarfraz and Riaz Hussain; the Magistrate disagreed with the opinion of the Investigating Officer with cogent reasons; in formulating opining regarding innocence of the petitioner, the Investigating Officer violated the requirement of section 4(1), Cr.P.C, as his primary duty was to collect the- evidence and place the same before the Court concerned. Relies upon Anwar Shamim and another v. The State (2010 SCM R 1791) and Muhammad Arshad and others v. The State and others (PLD 2011 SC 350).
6. Having heard learned counsel for the parties and perused the record, it is observed that all three accused including Mushtaq Ahmad (petitioner), Imam Bakhsh and Muhammad Afzal were allegedly armed with .12-bore guns by means of which accused Imam Bakhsh and Mushtaq Ahmad (petitioner) made one fire each, whereas Muhammad Afzal-accused fired twice with his gun at Altaf Hussain deceased and committed his instantaneous murder, besides, Mushtaq Ahmad (petitioner) has also been burdened with the liability of raising a Lalkara at the time of alleged occurrence. The petitioner, when arrested on 5-9-2011, raised the, plea of innocence/alibi and produced witnesses in support thereof and his plea was verified by the Investigating Officer during the course of investigation. He underwent physical remind for thirteen days; but this period of time remained unproductive for the prosecution. On completion of investigation, the Investigating Officer categorically opined, having extensively investigated the case that the petitioner had not taken part in the incident and he was not responsible for the alleged occurrence in any manner, which, led to placement of his name in Column No,2 of the report under section 173, Cr.P.C. A discharge report in respect of the accused-petitioner was also prepared by the Investigating Officer, but it was not concurred with by the learned area Magistrate. There is no cavil to the proposition that the opinion of the Investigating Officer does not have the binding effect and it becomes not only irrelevant but also inadmissible in evidence at trial. The reasonableness or the persuasiveness of such opinion, however, can be glanced at while adjudicating upon the bail plea of an accused by tentatively assessing the worth thereof. The postmortem examination report of the deceased reveals a firearm entry wound measuring 0.5 cm x 0.5 cm on the back of left hand at the root of middle finger with fractured underlying bone. This is a crucial fact that' all the accused were armed with a .12-bore gun each, which, admittedly, is a soft bore weapon and causes dispersal of multiple. Spherical led balls, even if fired through once. It may not be possible for the human eye to visualize the landing of multiple pellets of .12-bore, on the body of a human being with exactitude. Only one fire shot of a .12-bore weapon may result into more than one injury to an individual. The probability qua landing of a pellet at the back of left hand of the deceased off a fire shot made by the co-accused of the petitioner cannot be ruled out This is, however, a riddle, which may be undone by the trial Court after recording the evidence of the parties during trial. The facts of the ease law relied upon by learned counsel for the complainant may not be of much relevance at this stage, as the above said august judgments deal with the appeals filed by the convicts at post-trial stage. Sufficient reasons exist to believe that the petitioner's case calls for further probe into his guilt within the meaning of section 497(2), F Cr.P.C.
7. Resultantly, this application is allowed and the petitioner is admitted to G post-arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.