SHAHID HAMEED DAR, J. - Mohsin Ali Raza Shah (petitioner) seeks bail after arrest in case F.I.R. No. 102, dated 12.6.2012 registered for offences u/Ss. 302, 324, 109, 148, 149, P.P.C, at Police Station, Dhuman, District Chakwal.
2. The petitioner was arrested in this case on 1.8.2012 on the charge of having committed the murder of Sohail Abbas and attempting on the life of Tassawar Hussain Shah, while armed with a kalashnikov and joined by his armed cronies. Certain specific attributions have been made by Saleem Abbas (complainant) in the F.I.R., according to which all the accused mentioned in the F.I.R., emerged from the house of the petitioner and mounted an attack on the complainant side, during the course of which the accused/petitioner made a fire shot with his Kalashinkov which landed at the face of Sohail Abbas (deceased) followed by another fire shot by him, hitting the neck-area of Tassawar Hussain Shah while his armed co-accused also resorted to a similar act of firing whereby they authored multiple fire-arm injuries on the bodies of both the victims. One of the injured namely Sohail Abbas succumbed to the injuries, en-route the hospital. The motive behind the occurrence pertained to a previous altercation between the parties wherein Iftikhar Hussain Shah, a paternal nephew of the complainant received injuries at the hands of accused Asad Abbas Shah, etc.
3. The complainant, according to the record rendered a supplementary statement on 12.6.2012, whereby, he contended that he was in a perturbed state of mind while reporting the crime to the police and for this reason he omitted to mention a couple of important factors qua the occurrence which included the fact that the accused, dragged both the injured from the place of occurrence towards their house and .One of them Asad Abbas, on the asking of Mohsin Raza Shah (petitioner picked-up the crime empties from the place of occurrence to destroy them. Tassawar Hussain Shah, the injured of this case appears to have been recorded u/S. 161, Cr.P.C, on 20.6.2012 who contended before the I.O. That he had been hit by the firing of the accused with the specification that Mohsin Ali Raza (petitioner) and Badro accused held repeater-guns at the crucial hour, by means of which they made firing.
4. Learned counsel for the petitioner submits that the story contained in the F.I.R, was not believed by the I.O. During the course of investigation for a variety of reasons and not-result thereof was that the petitioner was found ironic&nt by the I.O. And recommended for discharge from this case, though not concurred with by the learned Area Magistrate; the petitioner has been placed in Column No. 2 of the challan which renders his case one of further inquiry, within the scope of Section 497(2), Cr.P.C.; the medical evidence is. In sharp conflict with the eye-witness account as the dimension/measurement of the injuries on the body of the deceased and that of the injured categorically reflected that pellets had been fired by the accused and not the bullets as alleged in the F.I.R.; it is a case of three versions and which one of them is true can only be assessed by the learned Trial Court at trial. Relies upon case titled Shazia Ghafoor i/s. The State (2005 YLR 2477), Mushtaq Ahmad Vs. The State (2012 YLR 1101), Rehmat Ullah alias Rehman's Vs. The State and another (1970 SGMR 299), Meeran Bux Vs. The State and another (PLD 1989 SC 347), Muhammad Ilyas Vs. Ijaz Ahmad Butt and another (1992 SCM R 1857), Muhammad Mumtaz and 3 others Vs. The State (1988 SCM R 1452), Dr. Muhammad Aslam Vs. The State (1993 SCM R 2288) and Amir AH and others Vs. The State (1984 SCM R 521).
5. On the other hand, learned Deputy Prosecutor General, Punjab assisted by learned counsel for the complainant opposes with the contention that the trial has commenced and five prosecution witnesses have already been recorded by the Trial Court and in such a situation any comments/remarks by this Court on merits of the case may prejudice the case of any of the parties; the complainant had not rendered any supplementary statement during the course of investigation nor there was any such, occasion for him to do so; the Investigating Officer being hands in glove with the accused side, fabricated fake evidence to damage the prosecution case and extend undue benefit to the accused; the plea of alibi of the petitioner has been believed in an arbitrary and capricious manner by the I.O., overlooking the delayed joining of investigation by him; deeper appreciation of evidence is not permissible under the law and specially at a stage when conclusion of the trial in foreseeable future is a strong probability. Relies upon case titled Mumtaz Vs. The State (2012 SCMR1556), Muhammad Arshad and others Vs. The State and others (PLD 2011 Supreme Court 350) and Abdul Hayee and 2 others Vs. The State (1996 SCM R 555).
6. After hearing learned counsel for the parties and perusing the record, it is observed that Sohail Abbas (deceased) was allegedly fired at by Mohsin Ali Shah (petitioner) with a kalashnikov, badro Shah accused with his repeater gun and Asad Abbas Shah accused with a .12 bore gun. The missiles allegedly fired by Mohsin' Ali Shah (petitioner) and Badro Shah accused landed at his face whereas, firing made by Asad Abbas Shah accused hit his left calf. The Medical Officer while performing autopsy on the dead-body of the deceased found multiple fire-arm entry wounds (injury No. 2) measuring 0.4 c.m. x 0.4 c.m., with blackened inverted margins covering the area of forehead and face of the deceased. The pictorial diagram shows scores of small apertures of equal size on the head and face of the deceased which can be seen, lying in close proximity inter se. The probability cannot be ruled out that all of these injuries have been caused by a soft bore weapon. The medico-legal report of Tassawar Hussain Shah injured reveals multiple lacerated wounds measuring 0.5 c.m. x 0.5 c.m. In the area of his chin, right side of neck and left lower thigh.
The probability of usage of soft bore weapon(s) by the accused, firing at him, cannot be ruled out.
According to the story of F.I.R. Badro Shah accused armed with repeater gun, Asad Abbas Shah armed with .12 bore gun and Mohsin Ali Shah (petitioner) armed with kalashnikov fired at Tassawar Hussain Shah and hit his face and neck. The Medical Officer found multiple lacerated/entry wounds on the right side of his neck with measurement of 0.5 c.m. x 0.5. c.m. Each. The injured witness was recorded on 20.6.2012 by the I.O, who alleged that Mohsin Ali Shah (petitioner) was armed with a repeater gun like his co-accused Badro at the relevant time of occurrence. The supplementary statement of the complainant, though disowned by his learned counsel, reveals that he introduced two facts therein thatthe accused, after committing the crime, dragged both the injured from the place of occurrence towards their house so as to paint a different picture qua the incident and that Asad Abbas accused, on the inducement of Mohsin Ali Raza Shah (petitioner picked-up the crime empties from the place of occurrence to screen the evidence. The petitioner's plea of alibi, that he had not participated in the occurrence, having gone to Chakwal much earlier than the time of occurrence, was verified by the Investigating Officer who formulated an opinion of innocence and recommended his discharge from this case. Learned Area Magistrate however did not agree with it, resultantly, his name was placed in Column No. 2 of the Challan. The Investigating Officer, after extensive investigation reached the conclusion that the complainant .Party, being aggrieved of the motive incident, went to the house of. Budar Munir alias Badro accused where they insulted his mother which infuriated him and to avenge the insult of his mother he went to his rooftop wherefrom he made firing with his .12 bore gun and downed Sohail Abbas (deceased) and Tassawar Hussain Shah with, fire-arm injuries. The Investigating Officer also opined that the complainant party took away their injured to nearby Chowk so as to fabricate an incident of their choice. The Investigating Officer collect only two empties of .12 bore from the place of occurrence during spot inspection. The equality of dimension/measurement of the injuries of the deceased as well as that of the injured witness, is an important circumstance which lends a sense of plausibility of the above-noted opinion of the Investigating Officer. The petitioner after having been arrested on 1.8.2012 underwent physical remand till 15.8.2012 but nothing was recovered at his instance. With all the reverence for the case-law relied upon by the learned counsel for the complainant, it is found that the facts of this case do not assimilate the facts of the said judgments. Keeping in view the ratio of the judgments relied upon by the learned counsel for the petitioner and tentatively assessing the data available on the record, I am of the considered opinion that the petitioner's case constitutes need for further probe into his guilt, as contemplated under Section 497(2), Cr.P.C.
7. For the discussion supra, I accept this application and admit the petitioner to post-arrest bail subject to furnishing bail bonds in the sum of Rs. 2,00,000/- with two sureties each in the like amount to the satisfaction of learned Trial Court.-