' SYED MUHAMMAD KAZIM RAZA SHAMS!, J.---By filing instant criminal miscellaneous petition Khalid Mehmood petitioner prays for his release on post-arrest bail in case F.I.R. No,1250, dated 29-12-2010, registered at Police Station Mumtazabad, District Multan under sections 302, 324, 148 & 149, P.P.C.
2. As per allegations contained in the F.I.R. Muhammad Arif, the father of the complainant, after putting shutters of his shop dawn was returning to his house along with his employee Muhammad Sajid, when at about 9.35 p.m. On 28-12-2010 he was intercepted by the petitioner Khalid Mehmood, who was in the company of his brother-in-law Sheikh Riaz, Liaqat Ali and Rizwan and on seeing the deceased Muhammad Arif, the petitioner Khalid Mehmood made firing hitting on the front side of chest, arms and other parts of body of Muhammad Arif while Sajid, the employee, had also received injury at his right 'Putt'. The injured were shifted to the hospital where Muhammad Arif succumbed to the injuries. The motive for the occurrence allegedly was that the deceased was receiving threats from the petitioner, who happens to be his real brother, with whom he had a dispute of property.
3. Learned counsel for the petitioner while pre-empting the objection of learned counsel for the complainant, while providing history of earlier bail petitions, has pointed out that the petition in hand is fifth one, the first bail petition was withdrawn on the instructions of the petitioner, second was withdrawn to avail statutory ground, in the third bail petition a direction was issued by this Court to the learned trial Court for expeditious decision of the case and in the fourth petition this Court was of the view that no fresh ground was available to the petitioner in filing that petition, so that petition was dismissed in limine. He has submitted that the withdrawal of the successive bail applications by the petitioner was simplicitor and the ratio settled in 'Amir Masih's case' (2013 SCM R 1524) is not applicable to the case in hand. He has further argued that in view of the dictum laid down in the case of Rizwan Ali v. State and others (PLJ 2013 SC 762) the bail application cannot be dismissed merely on the ground of withdrawal of previous bail application, rather it was the essence of the ratio of the judgment of the apex Court that the merits of the case be also discussed. Learned counsel in this regard has cited various judgments.
4. On merits of the case, learned counsel for the petitioner has pointed out that although allegation of firing has been levelled against the petitioner in which firing Sajid, an employee of the deceased.
Muhammad Arif, had also received injury but he (Sajid) has filed an affidavit and made a request for recording of his statement in which statement he had controverted the fact of culpable homicide and stated the case in hand was of dacoity, so in this manner the case of the prosecution has become dubious. He has also taken the shelter of the statement of the mother of the deceased, who has also negated the contents of the F.I.R. According to the learned counsel, in view of the statements of Sajid injured P.W. And mother of the deceased, the Police had declared the other assailants as innocent in the case. It is an additional ground of the learned counsel that it was dark night occurrence, therefore, there is probability that deceased was killed when he was being robbed by unknown persons and that it was not intentional murder of the deceased Muhammad Arif. Learned counsel has further submitted that Sajid P.W. Of the case had also filed a criminal revision for the implementation of the orders of this Court in which a direction was issued to the Investigating Officer for recording statement of Sajid, injured if earlier not recorded and then to submit complete report under section 173, Cr.P.C. To the Court but that direction had not been complied with by the Investigating Officer. Additionally, negative report of Arms Expert and recovery of weapon from the house of co-accused Riaz have also been added by learned counsel with the prayer to allow petition in hand.
5. On the other hand, the petition has been opposed vehemently by the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant, with the assertion that the complainant and the petitioner are uncle and nephew, inter se and the deceased was the real brother of the petitioner so there are remote chances of mistaken identity of the assailants. It is fm..Ther argued that the petitioner is specifically nominated accused of the F.I.R., who with his weapon had caused about 12 injuries on the person of the deceased which fact not only indicates his intention to do away deceased but also shows that he is a desperate and hardened criminal.
Regarding the filing of fifth bail application, it is the argument after dismissal of fourth bail petition, the petitioner was required to seek indulgence of the Apex Court by filing a petition for his bail for the reason that the bail application was decided by this Court on its merits, whereafter with the similar ground this application is not maintainable.
6. I have given my deep consideration to the submissions made by the learned counsel for the parties and have also examined the record.
7. First of all I would like to take up the objection of the learned counsel for the complainant regarding the maintainability of the instant petition. This Court while dismissing. Criminal Miscellaneous No,3605-B of 2013 on 1-8-2013 had observed as under:- "This is forth application for grant of post-arrest bail. The first one was withdrawn after arguing the case at some length. This is not the withdrawal simplicitor. No fresh round is available. This application is not maintainable. It is hereby dismissed."
' This order passed by this Court indicates that fourth bail application of the petitioner was dismissed by this Court on the ground that no fresh ground was available to the petitioner and the earlier withdrawal of the bail application was not withdrawal simplicitor. Against such observation, in my opinion, it was mandatory for the petitioner to seek his remedy before the august Supreme Court instead of repeating the some in this Court. In this manner the petition in hand is not maintainable.
8. Although it is observed in the preceding para that the petition in hand is not maintainable, however, keeping in view the ratio settled in 'Rizwan Ali's case' (supra) the merits of the case are also taken into consideration. The submission of the learned counsel for the petitioner that Sajid, injured P.W., has termed the occurrence as of dacoity instead of culpable homicide as such instant case has become of two versions, is a submission having no substance for the reason that initially when the statement of said Sajid Ali was recorded under section 161, Cr.P.C. He did not term the occurrence as of dacoity, rather subsequently he by filing an affidavit has changed his stance. In this manner initially he is the prosecution witness, who is to be examined by the prosecution at its option during the trial of the case. His subsequent dereliction from the original stand does not make the case in hand of two versions, rather it is a case of resiling of the witness after conclusion of the investigations. It is the option of the prosecution to examine the witness and declare him hostile if he resiles from his statement made under section 161, Cr.P.C. Or to give him up being won over but at this stage no such benefit can be extended in favour of the petitioner regarding the statement made by Sajid injured P.W. The petitioner, may, in case said P.W. Is not supporting the prosecution, summon that witness as Court witness or the court may summon him under section 540, Cr.P.C., if it feels that his statement in the court may lead to a just conclusion of the case. Same is the position with the statement of the mother of the deceased, which at this stage does not extend any help to the petitioner, nor it has any bearing on the incriminating material collected by Investigating Officer against the petitioner. Further, the argument made by the learned counsel for the petitioner, if are examined in its true prespective would amount to appreciation of the evidence available on the record deeply which practice is not permissible by law.
9. Another ground taken by the learned counsel for the petitioner for seeking bail is delay in the conclusion of the trial, which according to the learned counsel is not attributable to the present petitioner but on the examination of the record it is found that the delay is being caused at the instance of the petitioner as trial Court is waiting for the complete report of the Investigating Officer to be submitted under section 173, Cr.P.C. After recording the statement of Sajid, injured P.W., as per direction of this Court dated 12-9-2012 passed in Writ Petition No,3813 of 2012. In this connection, Civil Revision No,133 of 2013 is pending in this Court in which petition proceedings of trial Court have been stayed. In this manner the delay in the conclusion of the trial is attributable to the present petitioner.
10. Now coming to the case of the prosecution, it is found that the petitioner is named in the crime report with a specific allegation of firing upon the deceased Muhammad Arif and causing 12 injuries with the firearm to him due to which he had kissed the dust. The petitioner in this manner is the principal accused of the case, who cannot be let off on technical grounds like negative report of Arms Expert and that crime weapon was recovered at instance of petitioner from house of co- accused Riaz which pieces of evidence are corroboratory pieces, connected with material evidence and have no legal effect, if are considered independently from eyewitnesses account and medical evidence. Till date the statement of Sajid P.W. Recorded under section 161, Cr.P.C. Is available on the record, which supports the allegations contained in the F.I.R. And these allegations are further supported by the postmortem of the deceased. In this backdrop, the petitioner remained unable to make out a case for grant of bail.
11. For the foregoing reasons, the petition in hand is bereft of merits is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.