Usman Ali Maqbool (petitioner) seeks post-arrest bail in case FIR No.185/2023 dated 15.03.2023 registered under Sections 302,324,337-F (v) & 34 PPC at Police Station Kotli Loharan, Sialkot.
2. The case of prosecution as it gleans from the First Information Report is to the effect that Tariq Hussain (complainant) along with Imran, Asif and Hassan Tariq was sitting near the village graveyard on 15.03.2023 at about 7:30 p.m; that meanwhile Fahad and Ahad came there while seated on a motorcycle; that Zeeshan, Usman, Asif and Hassan who all were armed with .30 bore pistols were sitting in an ambush; that Zeeshan armed with pistol intercepted the bike of Fahad and Ahad; that thereafter Asif and Zeeshan fired pistol shots which hit at the various locales of Fahad and Ahad who after the receipt of injuries fell on the ground; that all the accused fled away from the scene while boarding a Suzuki car; that the complainant imparted information of the crime to police through Rescue "15"; that Imran and Asif shifted both the injured on their motorcycles; that Tariq Hussain (complainant) along with his son Hassan rushed to his house for taking motorcycle but in the way Usman and Hassan Yaqoob while standing on their rooftop fired at them through the pistols; that the bullets hit Hassan Yaqoob on his back, hip, testicles and left calf; that Hassan collapsed on the ground after receiving these injuries and immediately was shifted to THQ Hospital from where he was further forwarded to Allama Iqbal Memorial Hospital Sialkot due to his precarious condition.
3. Arguments heard. Record perused.
4. The unfortunate incident which formed basis of the instant case took place on the evening of 15.03.2023 within the precincts of Police Station Kotli Loharan. During this incident, two real brothers, namely Ahad and Fahad lost their lives, whereas Hassan Tariq received multiple firearm injuries.
The allegation of committing this crime was pointed towards a group of assailants comprising upon four persons, including Usman Ali Maqbool (petitioner). The three victims received injuries at two different spots and both the episodes are clubbed together in the crime report. Firstly, Fahad and Ahad were assassinated near a graveyard and shortly thereafter, Usman Maqbool (injured) came under attack while passing through the street adjacent to the house of accused persons.
5. The grant of instant post-arrest bail is mainly urged on the grounds of the case being of two versions and the declaration of innocence pronounced in favour of Usman Ali Maqbool (petitioner) during investigation. It unveils from the record that during probe cross-version of the case was also brought on record upon the application moved by Abid Hussain. According to the counter-version, one Asif received a bullet injury on his left arm due to a shot statedly fired by Qasim. As per record, Muhammad Asif was examined at THQ Hospital shortly after the incident and was found in receipt of a firearm entry wound on the left bicep which was having a corresponding exit wound as well as a fracture. During arguments it was informed by the Investigating Officer that the facts emanating from the counter-version of the incident were found to have truth in it. The procedural relief of bail is generally granted in cases of two versions in the absence of some extraordinary circumstances, more importantly when the counter stance of the accused about the same incident is supported by some record and investigation. The courts lean in favour of extending the concession of post- arrest bail to an accused in cases of cross-version on the premise that in such like cases it is always in fitness of things to leave the question of initiation of aggression to the trial court where it can best be decided after in-depth analysis of the evidence. Reference may be made to the case reported as Muhammad Zahid Umar v. The State and others (2016 SCMR 1246) wherein the Hon'ble Supreme Court of Pakistan held as under:- "Prima facie, both the parties have given their own version qua the manner in which this incident took place. Chances of suppression of real facts by both the parties cannot be ruled out. However, it is for the learned trial Court to determine, after elaborate evaluation of the evidence to be recorded by it, as to which party was the aggressor and who was aggressed upon."
If any further reference in this regard is needed that can also be made to the cases reported as Muhammad Shahzad Siddique v. The State and another (PLD 2009 Supreme Court 58) and Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845).
6. Before dilating upon the second ground of declaration of innocence pronounced in favour of petitioner by the police, it is deemed appropriate firstly to observe here that in routine ipse-dixit of the police without evaluating the supporting reasoning is not considered sufficient for the grant of post-arrest bail in a homicide case. Such opinion in favour of an accused can still be used for enlarging him on post-arrest bail if it is based on some confidence inspiring material by examining it on the touchstone of tentative assessment. The courts are not oblivious of the fact that vested interests, defective investigations and dishonest opinions have eroded and polluted the investigation process of criminal cases in our country. At the same time, the vengeance of litigants prompts them to grill some innocent persons along with actual offenders in criminal cases and fair police investigation is the only tool left for lifting veil from the actual facts. In the instant case, it is observed from record that petitioner was declared innocent on the basis of visuals of incident captured in CCTV camera installed adjacent to the crime scene. These visuals were also forwarded to PFSA and it was reported that the clips are free from editing and tampering. Needless to mention here that such video clips have legal admissibility in consonance with Articles 46-A & 164 of Qanun-e-Shahadat Order, 1984, thus can be taken into consideration even at bail stage. According to the police opinion based on these visuals, in fact the complainant-side mounted an aggression to take the life of petitioner who got married earlier in the day but unfortunately Fahad and Ahad became victim of this attack, though none out of them was having any concern with the ongoing enmity of the two families. The learned counsel for the complainant and learned law officer were also confronted with the opinion of police and the material upon which it was based but they remained more or less speechless. The judicial archives are not bereft of precedents wherein bail is granted to the accused ascribed the role of inflicting firearm injuries either to deceased or to the injured witnesses. In case reported as Khursheed Alam and another v. The State (2005 PCrLJ 582) this Court granted bail to the accused assigned the role of causing firearm injury to the deceased with the following observations:- "There is no cavil with the proposition that opinion of the Investigating Officer or the police is not binding on the Court, but at the same time it has to be kept in mind that the said opinion being adverse to the prosecution creates doubt about the veracity of the prosecution case especially so if the said opinion had been recorded as a result of investigation which could not be labelled as arbitrary or fanciful."
Similarly in the cases reported as Kashif v. The State (2005 PCrLJ 462), Muhammad Akhtar v. The State and another (2012 YLR 2025) and Abdul Rauf and another v. the State and another (2018 PCrLJ 834) post arrest bail was extended to accused who though were ascribed specific overt act of inflicting injuries either to the deceased or to injured witnesses in cases of homicide but were declared innocent by the police.
7. In the light of what has been discussed above, the instant petition is allowed. Resultantly, the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (rupees five lac) with two sureties each in the like amount to the satisfaction of the learned trial court.
8. On departing note, it is mentioned that the observations given hereinabove are tentative in nature and will not be taken to the prejudice to the prosecution case at the time of final decision.