' SARDAR MUHAMMAD SHAMIM KHAN, J.---Muhammad Shareef, petitioner seeks post arrest bail in case F.I.R. No,573 of 2010 dated 24-9-2010 for the offence under sections 302, 201 and 34, P.P.C.
Registered at Police Station Chowk Azam, District Layyah.
2. Regarding this occurrence a case F.I.R. No,555 of 2010 for the offence under section 325 of P.P.C.
Was registered at the instance of Muhammad Sharif, Sub-Inspector (petitioner), at Police Station Chowk Azam, District Layyah with the allegations that on 7-9-2010 at about 11-30 p.m. He along with other police officials went to arrest accused Imtiaz Ahmad alias Walia. When they reached in Mohallah Sharif Abad, it was informed to the police that accused Imtiaz Ahmad alias Walia was in the room of house of Muhammad Waheed. In the meanwhile, Muhammad Hayat, Malik. Ameer and Ch. Ijaz Ahmad respectable of the locality also came over there. Police along with aforementioned witnesses entered into the courtyard of the house of Muhammad Waheed and heard report of firing from inside the room. When police and other witnesses entered into the room, they saw that Imtiaz Ahmad alias Walia was smeared in blood,' who confessed before the police and aforementioned witnesses that he had attempted to commit suicide by firing at himself due to fear of his arrest. Imtiaz Ahmad was shifted to Rural Health Centre, Chowk Azam but he succumbed to injuries.
3. By order of learned Sessions Judge, learned Magistrate section 30 conducted judicial inquiry regarding the aforementioned occurrence and his findings dated 21-9-2010 are reproduced as under:-- "the death of the deceased was due to fire shot on his left upper portion of abdomen. It was close range fire and in general no one can adopt this for suicide. In my view, the deceased was not dead by the gun shot of his own hand. He was murdered by the person/persons who entered into the house of Waheed and they are police party."
4. On 23-9-2010 learned District and Sessions Judge, Layyah directed learned Judicial Magistrate section 30 to fix the responsibility of murder of. Imtiaz Ahmad alias Walia. On 24-9-2010 learned Magistrate section 30 submitted that Sharif, Sub-Inspector (petitioner), Khuda Bakhsh, 120/C and Muhammad Meraj, 140/C entered into the house of Waheed Ahmad and they were responsible for the murder of the deceased Imtiaz Ahmad alias Walia. It was further submitted by the said learned Magistrate that a criminal case under the relevant provision of law be registered against these three delinquent police officials. Keeping in view the report of judicial inquiry and order of learned District and Sessions Judge, Layyah, instant case F.I.R. No,573 of 2010 for the offence under sections 302 and 34, P.P.C. Was registered at Police Station Chowk Azam, Layyah against the petitioner and his co-accused Khuda Bakhsh and Meraj.
5. Learned counsel for the petitioner submits that petitioner was complainant of case. FI.R. No,555 of 2010 regarding this occurrence and according to the contents of said F.I.R. Imtiaz Ahmad alias Walia, a proclaimed offender committed suicide when police wanted to arrest him; that learned Magistrate section. 30 fixed the responsibility of the murder of Imtiaz Ahrnad alias Walia on the petitioner along with his co-accused without any lawful justification; that as this occurrence was not witnessed by anybody, so, it was not possible for the learned Magistrate section 30 to fix the responsibility of the murder on the petitioner and others; that during investigation conducted in this case police came to the conclusion that one Amir Irshad, Constable fired at Imtiaz Ahmad alias. Walia and committed his murder with his official rifle; that in this case the petitioner was alleged to have committed offence under section 201 P.P.C. Whereas during investigation conducted by DSP, RIB vide Zimni No,39 dated 16-3-2011 offence under section 201 P.P.C. Has been deleted and petitioner has been declared innocent; that being dis-satisfied with the investigation conducted by the police Gulshan Shahzadi, 'real sister of Imtiaz Ahmad alias Walia filed a private complaint regarding this occurrence against Rab Nawaz Khan, Muhammad Sharif (petitioner), Khuda Bakhsh, Muhammad Meraj, Amir Irshad, Hayat Muhammad, Farooq Alam Awan and Ch. Ejaz Ahmad Gill; that in the said private complaint Rab Nawaz, S.H.O. Was alleged to have fired at Imtiaz Ahmad alias Walia, deceased, whereas allegation against Sharif, Sub-Inspector (petitioner) and Muhammad Meraj was that they brought Imtiaz Ahmad alias Walia in an injured condition outside the room by catching hold of his hair; that there are three different versions of this occurrence and petitioner was, not alleged to have fired at the deceased in any one of the versions. It has lastly been argued that Khuda Bakhsh and Muhammad Meraj, co-accused of the petitioner have been granted bail by this Court vide order dated 3-3-2011 and role of the petitioner is at par with his aforementioned co-accused, therefore, the petitioner is also entitled to the same relief, so, he has prayed for grant of bail to the petitioner. Reliance has been placed on Taj Din and 2 others v. Sardar Vakil Khan and 2 others (1973 PCr.LJ 629 Lahore), Ahmed Ali v. The State (2007 PCr.LJ 372 Karachi).
6. Despite repeated calls none appeared on behalf of the complainant.
7. Learned D.P.G. Has not opposed the grant of bail to, the petitioner in view of the order dated 3-3- 2011 of this Court. Learned D.P.G. Has also verified the fact the DSP, RIB after investigation has deleted the offence under section 201, P.P.C. And petitioner has been declared innocent
8. I have heard the arguments advanced by learned counsel for the parties and perused the record.
9. It has been noticed that there are three versions regarding this occurrence. One version was given by Muhammad Sharif, Sub-Inspector (petitioner) in F.I.R. No,555 of 2010, other version was brought on the record on the basis of Judicial. Inquiry conducted by learned Magistrate section 30, whereupon instant F.I.R. No,573 of 2010 was lodged and the third one is available on the record in the shape of private complaint filed the Gulshan Shahzadi, real sister of Imtiaz Ahmad alias Walia.
Admittedly in all the three versions, the petitioner was not assigned the role of firing at Imtiaz Ahmad alias Walia, deceased, In the judicial inquiry conducted by the learned Magistrate section 30, he was not legally competent to fix the responsibility of murder of Imtiaz Ahmad alias Walia. The finding as to the guilt or innocence of any person, given by the Magistrate section 30 In inquiry will amount to prejudging the case and holding a person (or persons) concerned to be guilty even before they are tried for the offence in, question. During investigation of instant case police came to the conclusion that one Amir Shahzad, Constable was guilty of offence of murder of Imtiaz Ahmad alias Walia. Admittedly later on during investigation conducted by DSP, RIB offence under section 201, P.P.C. Has been deleted and petitioner has been declared innocent. Gulshan Shahzadi, the real sister of the deceased has filed the private complaint regarding this occurrence, so the trial of the case would be conducted in the private complaint whereas the challan case would be kept in abeyance. In the aforementioned private complaint petitioner is on bail as he had submitted his bail bonds in compliance of the order of the learned trial Court for his appearance before the Court in the said complaint case so there was no justification for declining the bail to the petitioner in this case which. Was to be kept in abeyance. Perusal of order dated 3-3-2011 of this Court further reveals Khuda Bakhsh and Muhammad Meraj, co-accused have been 'granted bail, and role of the petitioner is at par with them.
10. For what has been discussed above, petition in hand is accepted and petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.