' The petitioner seeks bail in a case registered against hi'm and three others namely Shujaat Hussain, Nazir Hussain and Rafaqat Hussain vide F.I.R. No, 191, dated 30-7-1990 for an offence under section 302/34/109 P.P.C. For causing death of Shah Syed.
2. According to the FIR, on 30-7-1990 at 1230 P.M.,the petitioner armed with a .12 bore single barrel gun, Shujat Hussain armed with .12 bore double barrel gun and Nazir Hussain Shah armed with a .12 bore carbine, set on fire the hedge in the land of Ghulam Murtaza Shah complainant. The complainant party tried to stop them from doing so but they threatened them to go back and claimed that they also had a right over the land (Khasra No, 171-Shamlat Deh). Shah Syed being an elderly person went ahead to advise them to desist from their act but the petitioner and Shujaat Hussain Shah, accused fired one shot each, at Shah Syed, hitting him on the right side of the belly and right thigh. Nazir Hussain, accused went a little close to the injured person and fired at him with carbine causing injuries to him in the lower part of the belly who fell down and died at the spot. The motive stated in the F.I.R. Is that Rafaqat Hussain accused had obtained a power of attorney from Nazar Shah and Bashir Shah who were co-sharers in the disputed land alongwith the petitioner. A civil suit was going on in the Court of the Civil Judge, Rawalpindi between the parties. Rafaqat Hussain had threatened them on 28-7-1990 to vacate the land failing which they would face serious consequences within two days. It was also stated that the three accused persons had attacked the complainant party at the instance of Rafaqat Hussain Shah accused.
3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and the complainant. The petitioner's learned counsel urged that the post-mortem report contradicts the eye-witnesses. He submits that according to the eye-witnesses, the shots were fired from a considerable distance but blackening found on the first injury mentioned in the post- mortem report indicates that the shot was fired from a close range. Further submits that the injuries could have been caused by one or two shots and the third accused, namely, Fateh Haider Shah, petitioner was falsely roped in although at the time of occurrence he was away to Rawalpindi and had returned at about 5 P.M. In the evening and then learnt about the occurrence. He produced evidence in support of his plea of alibi which was believed by the investigating officer, who found him to be innocent. Hence, he deserves concession of bail. The learned counsel places reliance on the cases of Muhammad Hayat v. The State 1974 P Cr. L J 450, Khalid Javed Gillan v. The State PLD 1978 SC 256, Nisar Ali v. The State 1984 PCr.L.I 425, Munawar v. The State 1984 P Cr. L J 767 and Ch. Muhammad Yousaf Sindhu v. The State PLD. 1990 Lahore 161. On the other hand the learned counsel for the State and the complainant strenuously opposed the petition and urged that the occurrence had taken place in the broad daylight and the eye-witnesses had properly seen and named the petitioner as one of the assailants who took an active part in the occurrence. They further urged that the plea of alibi was raised belatedly and at any rate not substantiated by reliable evidence. They urged that the place of occurrence was connected with Rawalpindi through a metalled road and was situated at a distance of about 8 miles. The accused could have conveniently covered the distance between the place of occurrence and Rawalpindi/Islamabad within 15 to 20 minutes in a car. They added that the occurrence had taken place at 12-30 P.M. And none of the witnesses had stated that at that time the accused was present with him. In support of their contentions they relied on the following judgments:--
(1) Muhammad Yaqoob v Iltaf-ur-Rahman PLD 1974 SC 83.
(2) Etbar Khan v The State 1977 P Cr.L J 114.
(3) Inayat-ul-Haq v. Said Muhammad Khan and others 1988 SCM R 1743.
(4) Farooq etc. v. The State 1989 P Cr.L J 638.
' They also submitted that the trial was going to commence soon and bail should not be granted at this stage. They relied on Muhammad Sadik and others v. The State 1980 SCM R 203. The complainant's learned counsel placed on the record a copy of F.I.R. No 515, dated 29-8-1985 under section 308/325 PPC in which Rafaqat Hussain was named as an accused. The complainant's learned counsel made a statement at the Bar that in that case Malik Shabbir Hussain DSP was the investigating officer who had found Rafaqat Hussain to be innocent. Since then Rafaqat Hussain had friendly relations, with Malik Shabbir and he used his influence in getting him and his cousin Fateh Haider Shah, petitioner declared to be innocent.
4. It is not possible for this Court, at this stage, to give any finding as to whether the injuries received by the deceased were caused by one or more shots. The apparent contradiction between the post-mortem and the ocular evidence is diluted as according to the F.I.R. Nazir Shah co-accused had gone a little close to the deceased and then fired at him. The exact distance from which the shot was fired would be determined by the trial Court after recording the evidence.Prima facie, the post mortem report shows that the injury having 58 lacerated wounds with blackening was caused by one shot and the other injuries having 42 and 30 small lacerated wounds were caused by two shots. Hence on a tentative appraisal of the material there does not appear to be any contradiction between the ocular evidence and the post-mortem report.
5. The judgments relied upon by the petitioner's learned counsel do lend support to the view that the police opinion about innocence of an accused being adverse to the prosecution puts one on guard about the veracity of the prosecution case and the accused can take due benefit of such an opinion at the bail stage. However, each case depends upon its own peculiar facts and circumstances.In Muhammad Hayat's case, two accused whose names were placed under column No,2 of the challan were allowed bail by the learned Sessions Judge but he refused bail to Muhammad Hayat accused who was found to be innocent during the investigation but his name was not put in column No,2. On facts, it was noticed that two eye-witnesses from near the place of occurrence had stated before the police that the attack was launched by two persons who at that time could not be identified. They also gave a different version Of the occurrence. Under these circumstances this Court also allowed bail to Muhammad Heyat petitioner because the opinion qua his innocence did not appear to be dishonest or mala fide. In Khalid Javed Gillan's case the petitioner whose plea of alibi was supported by reliable documentary evidence was allowed bail. In that case the occurrence had taken place on 12-8-1977 at 6 P.M. But the petitioner was admitted in the Mental Hospital, Lahore as an indoor patient and had met Dr. MAAziz, Superintendent of the Mental Hospital, Lahore at about noon time on 12-8-1977. The Court noted distance between Lahore and Khanpur (where the occurrence had taken place) was about 350 miles and the petitioner could not have reached Khanpur within 6 hours of his appointment with the doctor at Lahore. In Nisar Ali's case it was held that the opinion of the police though not binding on Court was very much relevant for the purpose of bail as the same puts the Court to further inquiry even if the accused was not placed in column No,2. However, the material on which the police opinion was based was not mentioned in this judgment. I may observe with due deference that the bare police opinion qua innocence of an accused, without examining the material on which it is based, cannot be relied upon for grant of bail. In Munawar Ahmad's case bail was granted because two senior police officers had found that the petitioner was not present at the 'spot and that at the time of occurrence he was in the house of one Muhammad Iqbal. In Munawar Ahmad's case, the petitioner was found to be innocent in two successive investigations; one conducted by the SI which was affirmed as correct by the D.S.P. And the second by the DSP, CIA, Gujranwala. The petitioner's plea of alibi was supported by more than 100 persons who submitted their affidavits and made statements before the investigating officers. Thus the evidence in support of the plea of alibi, delay of about 10 hours in lodging the FIR and the opinion of innocence recorded by the police persuaded the Court to grant bail to the petitioner. Hence, it is obvious that the precedents quoted by the petitioner's learned counsel proceed on their own peculiar facts and are not of much help to him in the present case.
6. Now a reference may be made to the judgments relied upon by the learned counsel for the complainant. In Altaf-ur-Rahman's case bail granted by the High Court on the plea of alibi was cancelled by the Hon'ble Supreme Court as the finding recorded by the High Court about the plea of alibi was not based on a consideration of a number of relevant facts available on the record. In this connection it was particularly noticed by the Court that the plea of alibi was not raised by Altaf-ur-Rahman at the earliest opportunity and that it was his brother Habib-ur-Rahman who raised it for the first time nearly 5 months after the occurrence. In Etbar Khan's case the finding of innocence recorded by the investigating officer and affirmed by the supervisory police officer was not considered to be sufficient for allowing bail to the accused persons. In this case the Court noticed that the Zimnis, were tampered with and that there were some over-writings on the numbering of the Zimnis which also appeared to be written on a different kind of paper than the earlier pages. Despite the opinion of innocence in favour of the accused they were refused bail. In Inayat-ul-Haq's case it was held by the Hon'ble Supreme Court that there was no bar upon the High Court from evaluating the material on the record to see whether the investigating authority was justified in thinking that the accused was innocent. After evaluating the material on the record the Court set aside the order of the High Court and cancelled the bail granted to the accused. In Farooq's case opinion of police regarding innocence of the accused was not found to be based on sound material. Hence bail was refused to the accused petitioner. In the light of the dictum of the Hon'ble Supreme Court in Inayat-ul-Haq's case, I now proceed to make a tentative appraisal of the material in support of the plea of alibi raised by the petitioner.
7. The petitioner claims that on 30-7-1990, he was away to Rawalpindi from 8 a.m. To 3 p.m. And came back to village Allah Ditta at about 5 P.M and learnt about the registration of the case. In support of the plea of alibi the petitioner produced about 11 witnesses out of whom the material witnesses are Syed Rafaqat Hussain Shah, Malik Banaras, Ghazi Khan and Malik Shabbir Ahmad, DSP, Rawalpindi. Syed Rafaqat Hussain Shah, a cousin of the petitioner is himself an accused in the case. It may be mentioned that he was found to be innocent and discharged from the case but a private complaint was pending against him in the trial Court. He was Manager of Pasban Co- operative Bank, Koh-i-Noor Mills. Ghazi Khan is employed as gun-man in the same bank. Rafaqat Hussain Shah appeared before the investigating officer on 7-8-1990, after grant of interim bail by the learned Addl. Sessions Judge, Islamabad. He made detailed statements before the investigating officer on 7-8-1990 and 8-8-1990 but did not say any thing in relation to the petitioner's plea of alibi. However, Malik Muhammad Banaras and Ghazi Khan supported the petitioner's plea of alibi and stated that they had gone to Rafaqat Hussain Shah in the bank and from there they alongwith the petitioner and Rafaqat Hussain went to the office of DSP. Malik Banaras claimed that he alongwith Rafaqat Shah went in the office of the DSP at 11 A.M., while Ghazi Khan and Fateh Haider kept sitting in the car outside the office. Malik Shabbir, DSP stated that only Rafaqat Hussain Shah had come to see him at 10 A.M. And the other persons accompanying him remained outside in the car. The DSP added that Rafaqat Hussain Shah remained with him from 10 A.M. To 1 P.M. The petitioner also produced Raja Muhammad Nawaz, Muhammad Riaz, Abdur Rahman and Manzoor Hussain, who had allegedly met him outside the office of the DSP at 1.00 P.M.
The DSP admitted that he had old intimacy with Rafaqat Hussain Shah and added that he did not know whether Fateh Haider Shah was amongst the persons who were sitting outside in the car.
After being arrested on 6-8-1990, the petitioner stated before the investigating officer that on 30-7- 1990 at about 8.30 A.M. He had gone to Sayyed Rafaqat Hussain Shah at Kohi-Noor Mills. From there, he alongwith Rafaqat Hussain Shah, Malik Muhammad Banaras and Ghazi Khan went to Rawalpindi in connection with some personal work. He did not say anything about their visit to the office of the DSP. The above alibi evidence does not appear to be sufficient to give a lie to the ocular evidence. The statement made by Malik Shabbir, DSP proves presence of Rafaqat Hussain Shah, accused in his office from 10 A.M. To 1 P.M. The claim of Malik Muhammad Banaras that he had accompanied Rafaqat Shah, Ghazi Khan and Fateh Haider, petitioner to the office of DSP at 11 A.M. Is thus open to serious doubts, particularly when the petitioner himself did not say anything regarding the visit to the office of the DSP. Thus on a tentative appraisal, the alibi evidence does not inspire much confidence. The statements of other witnesses, who claimed to have met the petitioner at 1.00 p.m. Or 1.30 p.m. C at Rawalpindi and Islamabad, are of no help to him because the occurrence had taken place at about 12.30 p.m. At a distance of only 8 miles from Rawalpindi.
One can easily reach Rawalpindi from the place of occurrence within half an hour in a car or any other fast moving vehicle. The eye witnesses have consistently stated that the petitioner was present at the time of occurrence and fired at the D deceased with a .12 bore single barrel gun.
Hence, I am not inclined to rely on the opinion of the police regarding the petitioner's innocence.
8. For the foregoing reasons, I do not find any merit in this petition, which is dismissed, It is clarified in the end that the observations made above are purely of tentative nature and shall not stand in the way of the trial Court in coming to its own independent conclusions in the light of the evidence produced before it. 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.