' SYED MUHAMMAD KAZIM RAZA SHAMS!, J.---Criminal Miscellaneous Nos.9984-BC, 14363-BC and 14410-BC of 2012 are proposed to be decided by this single order in view of the fact that the petitions have arisen from a common F.I.R.
2. Khadim Hussain being complainant of case F.I.R. No,233, dated 11-6-2012 by filing the instant petitions under section 497(5), Cr.P.C. Has prayed for recalling of bail granting orders of learned trial Court whereby Mohsin Ali (respondent No,2 in Criminal Miscellaneous No,9984-BC of 2012), Armghan alias Kashi, Adal, Adeel, Tanzeel, Rizwan (respondents Nos.2 to 6 in Criminal Miscellaneous No,14363-BC of 2012) and Sharafat Ali (respondent No,2 in Criminal Miscellaneous No,14410-BC of 2012) were admitted to bail on different dates when the petitions were filed before the Court. The afore-noted persons were accused of murder of Arif Husain reported through F.I.R.
No,233, dated 11-6-2012 registered against them under sections 302,. 148 and 149, P.P.C. With Police Station Saddar Pasrur, District Sialkot.
3. As per contents of the F.I.R. The complainant along with his real brother's Arif Hussain and Intizar Hussain were present in their house when on 11-6-2012 at about 8-00 p.m. Accused Saqib armed with pistol .30 bore, Armghan, Adeel, Tanzeel, Mohsin Ali, Adal Hussain, Sharafat All and Rizwan armed with Dandas' emerged at the door of the house of the complainant. They were raising 'Lalkaras' and were also abusing. They called out Arif Hussain from the'house and as soon as he came out the accused persons started beating him. On the report of noise the complainant also came out of the house and saw that Saqib accused making a direct fire upon Arif Hussain, which hit on the left side of, his neck under the ear. Arif. Hussain succumbed to the injuries at the spot and all the accused persons leaving their motor-cycles decamped towards the village. The motive for the occurrence statedly is that a day earlier the accused party had an altercation with Intizar Hussain brother of the complainant while playing cricket, due to which the occurrence had taken place.
4. Mohin Ali respondent was granted anticipatory bail whereas rest of the respondents in other petitions were admitted to post arrest bail by the learned trial Court. The main ground, which found favour with the learned trial Court for granting bail was that a general role of beating was levelled against all the respondents and their mere presence at the spot was not sufficient to hold them responsible for the murder of Arif Hussain.
5. Learned counsel for the petitioner has raised various grounds for recalling the bail granting order and in this connection has cited the cases of Zafar Iqbal v. Muhammad Ilyas and another (2006 SCM R 150), Ehsan Akbar v. The State and 2 others (2007 SCM R 482), Mst. Noor Habib v. Saleem Raza and others (2009 SCAR, 786), Haji Gul Rehman v. Imran-ud-Din and another (2009 SCM R 1179) and Shaukat Hayat v. The State (2010 SCM R 1931).
6. According to the submission the respondents were nominated in the F.I.R. With specific role of beating the deceased with their respective weapons, therefore, neither there was any justification for granting bail on the fact of further inquiry nor the respondents could be able to establish any mala fide on the part of the complainant for falsely implicating them in the case.
7. On the other hand, learned counsel appearing on behalf of the respondents submitted that there is no evidence available on the record indicating the participation of the respondents in the occurrence and there appears that the respondents except Armghan were only present at the spot without performing any overt act. Learned counsel argued that according to the petitioner more than eight persons were beating the deceased, thus if this assertion is admitted as correct then the body of the deceased should have contained atleast eight injuries. They while referring the postmortem report of Arif Hussain pointed out that only three injuries were found on the person of the deceased, out of which only one injury was of fire-arm while two injuries were of blunt weapon as reported by the Medical Officer, thus argued that this fact was duly considered by the learned trial Court while granting bails to the respondents. A prayer for dismissal of the petitions has been made in this backdrop.
8. I have considered the submissions made by the learned counsel for the parties and examined the record minutely. The allegation against the respondents except Armghan is of general beating as is evident from the crime report. The allegation so levelled against the respondents is not reflected and established from the postmortem report, which contains only three injuries suffered by the deceased, out of which one injury was of firearm, which has been attributed to Saqib co- accused while two injuries were with blunt weapon. It is not clear on the record that out of eight persons, who had caused injuries with blunt weapon on the body of the deceased. It is true that it is not expected from the complainant of the case to give graphic description of the seats of injuries but nevertheless the complainant has to explain to some extent the infliction of the injuries when more than one person is nominated for the beating of the deceased. In this backdrop individual liability of each participant is matter of trial as at bail stage this liability cannot be determined. The trial Court has taken much pain in this respect and admitted respondents except Armghan to bail.
The order is well reasoned and found to be in accordance with law.
9. The upshot of this discussion is that' the petitioner has failed to make out a case for recalling of bail granted to Mohsin Ali (respondent No,2 in Criminal Miscellaneous No,9984-BC/2012), Adal, Adeel, Tanzeel, Rizwan (respondents Nos.3 to 6 in Criminal Miscellaneous No-.14363-BC/2012) and Sharafat Ali (respondent No,2 in Criminal) Miscellaneous No,14410-BC/2012), therefore, the petitions to their extent are liable to be dismissed.
10. So far as the case of Armghan respondent No,2 in Criminal Miscellaneous No,14363-BC/2012 is concerned, the same is on different footing. A notice was sent to Armghan respondent for his appearance in this Court for today and as per report of Ghazanfar Ali, Sub-Inspector the respondent Armghan had received the intimation of the fixation of the case in this Court today, as is evident from his signature in English available on the Police record meaning thereby that the respondent is having sufficient notice .Of the date of hearing. The said notice also contains the signatures of other respondents i.e, Mohsin etc., who appeared in the Court as well as are represented by their learned counsel. It appears that the respondent Armghan is intentionally and deliberately avoiding his appearance in this Court, therefore, keeping in view this attitude the petition to his extent is also decided.
11. According to the contents of the F.I.R. Initially Armghan respondent was allocated a general role of beating Arif Hussain deceased but subsequently Khadim Hussain, petitioner/complainant, by making an application, which was recorded by the Investigating Officer on same day in Zimni No,1 of Police file submitted that he got dictated the application for registration of the case from some other person, who inadvertently written that the fire was made by Saqib son of Riaz upon Arif Hussain deceased whereas actually the fire was made by Armghan son of Khalid Hussain and Saqib accused was having 'Soto' with him at the time of occurrence. This fact was duly recorded by the Police in Zimni No, l. The record further reveals that the second version given by the complainant Khadim Hussain has never been negated by him during the investigations and has owned the same. Further this fact was authenticated by P.Ws. Tanvir Hussain and Intizar Hussain by making their statements under section 161, Cr.P.C. Mentioning that Armghan accused had fired at the deceased Arif Hussain, which hit on the left side of his neck under the ear. Not only this evidence, a pistol .30 bore with three live bullets was also recovered at the instance of Armghan.
Thus it is sufficient material on the record to connect Armghan respondent with the charge of murder of Arif Hussain deceased. There is nothing on record on behalf of Armghan respondent to rebut these facts. In view of this material available on record against respondent Armghan, learned trial Court was not justified to extend benefit of bail to respondent. The order thus suffers from misreading of record.
12. For the foregoing reasons, Criminal Miscellaneous Nos.9984-BC/2012, Criminal Miscellaneous No,14410-BC/2012 are dismissed while Criminal Miscellaneous No,14363-BC/2012 to the extent of Armghan alias Kashi is allowed and bail granted to him by the learned trial Court is withdrawn while to the extent of respondents Nos.3 to 6 is dismissed.