The petitioners seek pre-arrest bail in case FIR No, 302 of 2017, registered under Sections 302, 324, 148, 149, 109 of The Pakistan Penal Code, 1860, read with Section 7 of The Anti-Terrorism Act, 1997, at Police Station Barki, Lahore.
2. As per FIR, the prosecution story in brief is that on 28.08.2017 at about 7:15 P.M. in the area of Mauza Rakh Padri, Barki, Lahore, near the `Dera' of Naseer Jutt, cross firing between two unknown groups took place which resulted into causing of injuries to three persons namely Shahbaz, Ali Hamza, Shabbir Ali and one passerby woman Mst. Alia Bibi. Waqas Ali son of the complainant who was riding motorcycle and was passing thereby also sustained injuries on right side of his chest and as a result whereof he lost his life.
3. I have heard learned counsel for the parties as well as learned law officer and have perused the record.
4. At the very outset it has been noticed that the offence under Section 7 of The Anti-Terrorism Act, 1997, stands deleted during the course of investigation.
Perusal of the record reveals that the petitioners have not been nominated in the FIR. According to the FIR, there has been a cross-firing between two unknown groups which resulted into the death of the complainant's son and sustaining of injuries by certain other persons. Though the petitioners have been nominated the complainant showing to have firearms in their possession through an undated application filed before the Incharge (Investigation) Butapur, Lahore but attributing causing of injuries to Ali Hamza, Shahbaz, Shabhir Ahmad and Ma Aalia Bibi.
The injured PWs Shebir Ahmad, All Hama and Shahbaz Ali got recorded their statements but the record is silent as to on which date the said statements have been recorded, However, Mel, Alia Bibi, another injured of the occurrence has not come forward to get recorded her statement. As per statements of the injured PWs, they attributed injuries to the petitioners as under:
(i) Mehmood Ahmad @ Moodi-petitioner caused injury to Shabbir;
(ii) Younas Ali-petitioner caused injury to Ali Ilamza;
(iii) Asif Ali-petitioner inflicted firearm injury to Mst. Alia Bibi; and (iv)Muhammad Rafique-petitioner caused damage to the vehicle belonging to the inured PWs.
I have gone through the statements of the injured PWs very carefully, perusal of which makes it clear that none of the injured PWs has stated about description of the injuries. At one hand they stated that the firing by the accused party was so indiscriminating that they were not able to handle but on the other they are stating about the fire shots made by petitioners. So, keeping in view the above situation, this Court is unable to understand as to which stance of the injured PWs is to be believed and which is not to be believed.
5. During the course of arguments, learned counsel for the complainant contends with vehemence that as all the petitioners have been found to be involved in the commission of offence alleged against them, so, their arrest is essential in order to affect recoveries of weapon of offence from their possession.
This Court regrets to endorse and share the contention of learned counsel on two fold reasons; firstly, the Court is not bound by the ipsi-dixit of the police and secondly, grant of pre-arrest bail does not create an obstacle in the way of investigation. Recovery of weapon of offence can equally be affected during the pendency of application for pre-arrest bail. It is not the case of the prosecution that the petitioners are not cooperating with the investigating agency. So. the contention raised is of no help to the complainant at this stage.
It is also available in the statements of all the above-mentioned injured PWs that the there is previous enmity between the petitioners and one Pervez, a relative of injured PWs, therefore, keeping in view the peculiar circumstances false implication of the petitioners cannot be ruled out.
6. In view of above, this Court is of the considered view that no useful purpose would be served to the prosecution by sending the petitioners to jail,
7. Pursuant to above discussion, while allowing this petition, ad-interim anticipatory bail already granted to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs, 200,000/- (Rupees two hundred thousand) each with one surety each in the like amount to the satisfaction of learned trial Court,
8. Needless to state that the observation(s) made hereinabove are only tentative in nature and are strictly confined to the extent of present application and would not prejudice the case of either party.