' SHAHID HAMEED DAR, J.---Hassan Raza Butt, Exh.S.H.O., Police Station Khanqah Dogran (petitioner), who stands imprisoned since 25-10-2012 in case F.I.R. No,340, dated 2-8-2012, for offences under sections 302, 324, 148, 149, P.P.C. (sections 109, 337-F(i), 337-F(iii), 337-F(v), P.P.C. Added later on), registered at Police Station Saddar Sangla Hill (Nankana Sahib) at the instance of Muhammad Falak Sher-complainant, by filing this application seeks post-arrest-bail.
2. Precisely, the allegation against the petitioner is that he being armed with Kalashnikov, joined by six named and two unknown companions, all armed with, Kalashnikovs, except Ijaz Ahmad accused, who allegedly held rifle G-3, attacked the complainant party on their agricultural land at about 4-30 p.m. On 2-8-2012, and sped away their vehicles from the venue of occurrence, leaving behind Sajjad Anwar son of Muhammad Anwar, resident of Dherh Chak No,29/RB and Naseer Ahmad son of Khan Muhammad, caste Machhi, resident of Dharmpura, Lahore dead with two others, Faisal alias Kaka and Fazal Mehmood alias Kala badly wounded; Hassan Raza Butt (petitioner) fired through his weapon at Naseer Ahmad, which landed at his left shoulder; many inhabitants of the village heard report of firing and they rushed to the spot, where incessant firing by all the accused welcomed them; the occurrence was committed by the accused in the backdrop of previous litigation and land-disputes with the complainant party.
3. It his been contended by learned counsel for the petitioner that the allegation against the petitioner is patently false as he neither participated in the occurrence nor he was linked with the co-accused in any manner; the contention of the complainant qua the petitioner is baseless as Naseer Ahmad, the alleged deceased of the occurrence, was alive and it was Muhammad Afzal son of Hakim Ali, who had been murdered during the occurrence along with Sajjad Anwar deceased; the story of F.I.R. Has been found false during the course of investigation; the Investigating Officer has opined that the petitioner was not a participant of th'e alleged occurrence and he has merely termed him an abettor; the petitioner remained with the police on physical remand for fourteen days but nothing was recovered from him during the said time-period; the story of F.I,R. Is afterthought and product of a deep-rooted conspiracy against the petitioner, who is not even remotely linked with the said incident and his case plainly falls within the purview of section 497(2), Cr.P.C.
4. Ch. Imran Raza Chadhar, Advocate, entered appearance on behalf of the legal heirs of Muhammad Afzal son of Hakim Ali, vociferously argued the point that it was Muhammad Afzal, who had been murdered along with Sajjad Anwar by the accused, Mehboob Ahmad and others, and enough material existed to establish the said fact; Naseer Ahmad, who is shown to have been murdered, in the F.I.R. Was alive and detained in District Jail, Sheikhupura in some cases of theft/dacoity etc.; the learned Judicial Magistrate, who conducted judicial inquiry under the orders of learned Sessions Judge, Nankana Sahib has tentatively opined that Muhammad Afzal had been murdered during the occurrence but he did not conclude the finding, leaving it to DNA test/profiling of Muhammad Afzal and Naseer Ahmad; the legal heirs of Muhammad Afzal are satisfied about the innocence of the petitioner and they are equally interested in his release on bail.
5. On the other hand, learned Additional Prosecutor-General Punjab assisted by learned counsel for the complainant opposes this petition with equal degree of vehemence by contending that the accused-petitioner actively participated in the occurrence and authored terminal injury on the body of Naseer Ahmad (deceased); none of the accused, arrested so far in this case, including the petitioner, at no stage of investigation ever contended that it was not Naseer Ahmad 4son of Khan Muhammad, who had been murdered during the occurrence or it was Muhammad Afzal son of Hakim Ali, having been killed by the accused; the opinion of the Investigating Officer showing the petitioner an abettor was recorded by him without any plausible and cogent material, which may not be given any importance; the confusion being created qua identification of the dead body of Naseer Ahmad deceased was a planned affair, which had been masterminded by the accused petitioner; all the eye-witnesses including the injured P.Ws. Categorically endorse the story of F.I.R.
In their statements under section 161, Cr.P.C.; lastly submits that the petitioner is well connected with the commission of offence, falling within the prohibitory clause of section 497(1), Cr.P.C. Learned Law Officer, however, admits that the Investigating Officer, Irfan Gul, S.-I., had held the petitioner not to have participated in the occurrence being not present at the spot at the relevant time of incident rather he opined that he (petitioner) abetted his co-accused to commit the crime and he possessed advance knowledge about the occurrence alleged.
6. After hearing learned counsel for the parties and perusing the record, it is observed that the learned counsel for the petitioner and Ch. Imran Raza Chadhar, Advocate, consumed every ounce of their energy to prove that it was Muhammad Afzal son of Hakim Ali, who had been murdered during the alleged occurrence and not Naseer Ahmad son of Khan Muhammad, as mentioned in the F.I.R. There, however, exists no controversy as to the identification of Sajjad Anwar deceased, whom the accused side also believes that he was the other disposed of person of this case. So far as, the police record is concerned, not a word can be found therefrom as Co afore-noted controversy and investigation of the case appears to have been finalized by the Investigating Officer, believing both, Naseer Ahmad and Sajjad Anwar, the slain-men, as shown in the F . I . R.
' We find that it all started when a lady named Mst. Surraya Bibi filed a habeas petition (Criminal Miscellaneous No,1669/H of 2012), claiming herself to be the wife of the alleged detenu, Muhammad Afzal son of Hakim Ali, which took a couple of turns before being disposed, of by this court on 6-9- 2012. During pendency of the said habeas petition, learned counsel for Mst.Surraya Bibi informed the court on 28-8-2012 that Muhammad Afzal, the alleged detenu, was a proclaimed offender of case F.I.R. No,787, dated 28-9-2011, under section 395, P.P.C., registered at Police Station Nishatabad (Faisalabad) and he as per contents of Rapat No, 9 dated 3-8-2012 recorded 'at the said police station had been murdered on 2-8-2012, but this fact was concealed with mala fide intention by Muhammad Falak Sher, who reported the said crime to the police vide case F.I.R. No,340 of 2012 (supra) and in his place, he introduced the name of Naseer Ahmad son of Khan Muhammad as one of the deceased along with Sajjad Anwar, being the other deceased. It was ordered by this court in habeas-petition on 28-8-2012 that the S.H.O., Police Station Sangla Hill (Nankana Sahib) would produce record of case F.I.R. No,340 of 2012 (supra) and S.H.O., Police Station Nishatabad (Faisalabad) would present police record of case F.I.R. No,787 of 2011 (supra) on 49-2012. He (Waheed) appeared in the said petition on 4-9-2012 to state that he had received the dead body of Naseer Ahmad deceased, who served him as a driver for five years; he undertook to produce the parents of Naseer (deceased) before this court, if accorded an opportunity. Learned counsel appearing on behalf of said Muhammad Falak Sher submitted before this court on 4-9-2012 in the habeas petition that a judicial inquiry was being conducted by a Judicial Magistrate at Sangla Hill in the alleged occurrence as contained in F.I.R.No,340 of 2012 (supra), whereon Mst. Surraya Bibi was directed to join the judicial inquiry and produce her evidence before the Judicial. Magistrate.
The habeas petition, as noted earlier, was wound up on 6-9-2012 with certain observations/ directions, one relating to the "factual controversy", if it was Naseer Ahmad or Muhammad Afzal, who had been murdered in the alleged occurrence, as contained in F.I.R.No,340 of 2012 (supra) and in this backdrop the judicial officer concerned was directed to "thrash out" the said riddle in judicial inquiry without being biased to any. By the other direction, Mst.Surraya Bibi was required again to join the said judicial inquiry. Interestingly, Mst.Surraya Bibi failed to impress the court through her conduct as she could not tell the name of even a single relative of her "missing, husband"
Muhammad Afzal (detenu) and frankly admitted that she knew nothing about it. Waheed, who was supposed to produce the parents of above-said Naseer Ahmad also showed his inability to do so on the said occasion, contending that he could not establish contact with them. The movement of this habeas petition, which started on 16-8-2012, came to a halt on 6-9-2012.
' Subsequent to disposal of above-said habeas petition, one Hakim Ali filed Writ Petition No,2149 of 2013 on 30-1-2013, versus the District and Sessions Judge, Nankana Sahib and six others with the prayer that respondent No,2, the judicial magistrate/inquiry officer, Nankana Sahib might be directed to complete the judicial inquiry, within one week, by taking into consideration all the documents relied upon by him, so as to verify the 'factum', if it was Naseer Ahmad son of Khan Muhammad, who had been murdered in the occurrence, as alleged in F.I.R. No,340 of 2012 (supra) or it was Muhammad Afzal son of Hakim Ali, who, as claimed, lost life in the said occurrence. This constitutional petition was still pending adjudication when one Fazal Mehmood, the injured P.W. Of the said murder case filed an identical petition (Writ Petition No,5438 of 2013) with the prayer that the proceedings of the judicial inquiry might be set aside, wherein a direction was given to the respondent-DPO on 7-3-2013 to submit his report and comments within a fortnight, as to the grievance of Fazal Mehmood, the mover of the petition. Both the constitutional petitions are still pending adjudication.
' The record reveals that the District Police Officer, Nankana Sahib vide memo No,1508-Legal, dated 8-8-2012 lodged a request for judicial inquiry in case F.I.R. No,340 of 2012 (supra), which was registered against Hassan Raza Butt (petitioner), the Inspector/S.H.O., Police Station Khanqah Dogran (Sheikhupura) and eight others, with the allegation that they being armed with sophisticated/lethal weapons, brutally murdered Naseer Ahmad son of Khan Muhammad and Sajjad Anwar son of Muhammad Anwar besides, seriously injuring Faisal alias Kaka and Fazal Mehmood. Learned District and Sessions Judge, Nankana Sahib deputed Mr. Shahid lqbal, Magistrate First Class, Sangla Hill to hold judicial inquiry in the said F.I.R.-case. The learned Magistrate virtually did nothing in the judicial inquiry except for formulating an interim inquiry report on 9-3-2013, whereby he tentatively opined that the DNA test was a key to the question, raised by one of the contesting sides if it was Muhammad Afzal and not Naseer Ahmad, who was murdered along with Sajjad Anwar during the occurrence, reported vide case F.I.R. No,340 of 2012 (supra).
' This court with a view to satisfy its judicial anxiety, summoned Khan Muhammad, father of Naseer Ahmad (deceased), and. Hakim Ali, father of Muhammad Afzal, to appear before this court for an interview. In the meanwhile, Ch.Imran Raza Chadhar, Advocate, created a stir by contending on 12- 6-2013 that Naseer Ahmad son of Khan Muhammad (deceased) was alive and arrested by the police in case F.I.R. No, 580, dated 3-6-2013 under section 13 of Pakistan Arms Ordinance, XX of 1965, registered at Police Station Gulberg, Lahore and also tendered a copy of the F.I.R. Both Khan Muhammad and Hakim Ali appeared before this court today and reiterated the facts, which they firstly spoke about on 20-6-2013. Khan Muhammad said that his son Naseer Ahmad was alive and confined in District Jail, Sheikhupura in some cases of dacoity, whereas Hakim Ali, the father of Muhammad Afzal, submitted that his son hid been murdered in an occurrence along with Sajjad Anwar deceased and that he buried his dead body in Chak No,49/GB, Bathan. The complainant party, however, refused to identify both Khan Muhammad and Hakim Ali with the contention that they were 'fake and imported actors', who played a conspiratorial role to mislead everyone and if their contentions were true, why didn't they ever join the investigation or judicial inquiry to press their astounding stance and why Naseer Ahmad, if alive, continuously kept himself tight-lipped and away from the said fora, which could guarantee him a life. This objection contained some substance therein as it left both the 'fathers' confused and speechless.
7. The first Investigating Officer of this case, Arshad Ali, S.-I. Was directed on 20-6-2013 to prepare a list of legal heirs of the deceased of F.I.R.-case, Sajjad Anwar and Naseer Ahmad and submit it before the court besides, ensuring presence of parents of Naseer Ahmad (deceased). He submitted his report to the effect that Naseer Ahmad son of Khan Muhammad was alive and confined in District Jail, Sheikhupura. This report is attached with the statements of parents of Naseer Ahmad and that of one Liaqat Ali son of Hakim Ali .Besides, the statement of Naseer Ahmad son of Khan Muhammad, allegedly recorded in District Jail, Sheikhupura on 24-6-2013, who appears to have stated before Arshad Ali, S.-I. That he knew about his name having been entered in F.I.R. No,340 of 2012 (supra) as a deceased but he kept mum and subdued as complainant party silenced him under duress. He further stated that he was confined in jail in some cases of theft and dacoity etc. This Sub-Inspector has compiled the said report without associating the complainant party with the assignment given. He did not interview the identifiers of the dead body of Naseer Ahrpad (deceased) nor he talked to Waheed, who as per police record received his dead body after its postmortem examination on 3-8-2012. He also took no pains to satisfy himself about the identification of Naseer Ahmad, confined in said jail and in sharp contrast to the investigation conducted by him, he readily believed him to be the deceased person' of the alleged occurrence (F.I.R. No,340/2012) albeit, Naseer Ahmad (deceased), as mentioned in the F.I.R. And in the necropsy report, hailed from Dharampura, Lahore, whereas Naseer Ahmad, reportedly interviewed by him in jail was resident of Tanda Colony, Jalalpur Bhattian, district Hafizabad. He investigated this case from 2-8-2012 to 19-9-2012, but he was never informed by .Anyone as to aforesaid controversy, despite Shehzad Ahmad accused, whom he arrested on 9-8-2012, remained under his extensive interrogation till 16-8-2012. He must have consulted the police-record before preparing the above- said report, which explicitly showed that the accused-,petitioner, who after having been arrested on 25-10-2012, underwent physical remand for fourteen days and interrogated on scores of occasions, did not adopt the version even once that there was any dispute or controversy as to the identification of the dead body of Naseer Ahmad son of Khan Muhammad. The recklessness and irresponsibility in preparation of the said report by Arshad Ali, S.-1. Is deplorable. Even otherwise, the report submitted by hini is a sketchY and shoddy document, which, in no way, helps resolve the dispute, if any. It can be safely assessed even at this stage that the learned trial Court is the best forum where both the parties would be at liberty to adduce evidence in support of their respective claims and proceedings being conducted hither and thither qua said 'issue' are bound to remain inconclusive. The complainant, Muhammad Falak Sher, in the meanwhile filed a private complaint against the accused of F.I.R.-case, wherein they have been summoned by the trial Court under section 204, Cr.P.C. To stand trial. The complainant has stuck to his previous stance in the complaint case by maintaining that Sajjad Anwar and Naseer Ahmad son of Khan Muhammad were murdered by the accused.
8. So far as the role attributed to the petitioner is concerned, he allegedly fired at Naseer Ahmad (deceased) through his Kalashnikov, which landed at his left shoulder. According to remarks by the medical officer, as recorded in the postmortem examination report, injury No,1, which is at back of left shoulder of the deceased, was fatal in nature, having damaged the vital organs and major blood vessels. Besides, Muhammad Falak Sher (complainant) there are three other eyewitnesses of the occurrence, which also include Faisal alias Kaka and Fazal Mehmood, the injured witnesses, who all still support the prosecution case in entirety. The petitioner being a man in uniform and S.H.O. Of a police station other than the one, in the limits whereof the alleged occurrence took place, had no business to be there at the spot, while accompanying, virtually leading a heavily armed band of the offenders. In parallel to it, Irfan Gul, S.-I., the Investigating Officer, has formulated the opinion vide case diary dated 22-10-2012 that the accused-petitioner certainly had a role in the alleged occurrence, but only that of an abettor. He opined so at the strength of some call-data pertaining to the cell-phone of the accused-petitioner and those of his co-accused. Does this opinion entail any element of cogency or not, learned Additional Prosecutor-General Punjab has shown little faith in it by submitting that it is a self-contradictory opinion, as maker thereof also held, in the same breath, that the accused-petitioner remained in the same area where the alleged occurrence took place, but not at the place of occurrence. We believe that the opinion so recorded by the Investigating Officer is implausible and unimpressive being a hollow affair, not based on any rationale. Even so, the opinion of an Investigating Officer, as held by the Hon'ble Supreme Court in Muhammad Abbasi's case reported as 2011 SCM R 1606 and Mst. Qudrat Bibi's case reported as 2003 SCM R 68, carries no weight in the eye of law nor does it bind the court in any manner. In Ghulam Ahmad Chishti's case, reported as 2013 SCM R 385, the apex court while rejecting bail plea of the accused observed that plea of alibi raised by the accused could be considered by the trial Court in the light of the evidence led by the prosecution and defence and the trial Court could also consider the allegation of conspiracy against the accused at the stage of trial. This is what the petitioner's case is all about. He does not appear to have been stitched up in this case by the complainant, for a variety of reasons/facts vis-a-vis, daylight occurrence, prompt F.I.R., specific role of inflicting terminal injury to Naseer Ahmad (deceased), corroboratory medical evidence and overwhelmingly consistent eye-witness, account, which pushes aside much- trumpeted "controversy" qua identification of the dead body of Naseer Ahmad (deceased) and also dwindles the efficacy of argument of the learned counsel for the petitioner, that it was a case, open to further probe, within the scope of section 497(2), Cr.P.C.
9. For the reasons discussed supra, we find no merit in this application, which is accordingly dismissed.