The petitioners who are accused of offences under section 302/308, P.P.C. Arising out of F.I.R. No.270, dated 5-8-1990 registered at Police Station Old Anarkali, seek to be admitted to bail.
2. Briefly the allegations as disclosed in the F.I.R. Are that on 5-8-1990 at 4-30 p.m. Javed lqbal petitioner No.1 on the Lalkara of Zafar alias Pappu, had fired a gunshot hitting Shakil Ahmed P.W. On his right wrist while Muhammad Arif alias Malangi petitioner No.2 had fired a revolver shot hitting Muhammad Akram deceased on his head. It is further alleged that War alias Pappu aforesaid had also fired a gunshot which hit Muhammad Akram deceased on front of his chest and shoulder.
Muhammad Akram, who was carried to the hospital in injured condition, succumbed to the injuries the same day.
3. The learned counsel for the petitioners has raised the following contentions:
(a) That it is a case of two versions and the version put forth by the defence has been accepted by the police, hence the case against the petitioners is one of further inquiry and they are entitled to the grant of bail as a matter of right and has placed reliance on 1990 P Cr. L J 917 and PLD 1990 SC 959.
(b) That the occurrence took place at the hotel of the petitioners and there are marks of bullet/pellets inside the hotel as well as at the adjacent buildings of the hotel, which prima facie lends support to the defence version that the complainant party was aggressor and the petitioners opened fire in self-defence.
(c) That the independent witnesses from the locality have supported the version given by the defence, hence the finding of the police is based on proper material.
(d) That the complainant as weal as the eye-witnesses have been challaned under section 307/452/148/149, P.P.C. With respect to the same occurrence by the local police which proves the defence version. The complainant party has been granted pre-arrest bail in that case, on the principle of consistency, the petitioners are also entitled to the grant of bail.
(e) That Javed Iqbal petitioner No.1 has to appeal in Intermediate (Annual) Examination 1991 hence on compassionate ground, he is entitled to bail, and placed reliance on 1975 SCMR 139.
(f) That Javed lqbal petitioner No.1 at the time of occurrence was aged 16 years 11 months as his date of birth is 25-9-1973, and the ocular version given in the F.I.R. Is against the medical evidence.
According to ocular evidence Muhammad Akram deceased received bullet injuries whereas there is no bullet injury on the person of the deceased, hence the petitioners are entitled to bail as case against them is one of further inquiry. Reliance is placed on 1978 SCMR 285.
4. The learned Law Officer assisted by the learned counsel for the complainant has submitted that no material is available on the record which could justify the findings given by the police that the petitioners acted in self-defence. He has further submitted that the petitioners are named in the F.I.R. Which has been lodged promptly, and specific role has been attributed to them. The weapons of offence have been recovered from the petitioners. This Court, at the bail stage, would not go into deeper appreciation of the evidence, as the case of the petitioners falls within the prohibitory clause, they are not entitled to the grant of bail. The learned Law Officer has next contended that the duty of the police under the Code of Criminal Procedure is to investigate the case and to place all the material before the Court, the police under the law cannot appreciate the facts and give decision that the offence actually committed by the .Petitioners falls under section 304, P.P.C. And not under section 302, P.P.C. The learned Law Officer has vehemently contended that it is the prerogative of the Court to decide under what section of law the offence actually falls on the basis of the evidence/material placed before the Court. He has also submitted that in the present case the investigation has not been conducted honestly and fairly, hence no reliance can be placed on this dubious investigation.
5. After hearing the learned counsel for the parties and carefully examining the police record, I find substantial force in the submission of the learned Law Officer that finding of the police that the version given in the F.I.R. Is incorrect and the petitioners acted in self-defence is not based upon proper appreciation of material so far collected; suffice it to say, that no crime empty was found at the spot in spite of the allegation of indiscriminate firing by the complainant party, even no mouser or pistol was found with the deceased during the investigation.
If an accused person otherwise is not entitled to bail, mere minority would not entitle him to the said relief. Reference in this connection can be made to 1970SCMR514.
6. At bail stage, the Court in order to form an opinion whether an accused person is involved in a case which falls within the prohibitory clause of section 497(1), Cr.P.C., or not, has to examine tentatively the F.I.R., statements of witnesses under section 161, Cr.P.C. And any other incriminating material collected during the investigation against him.
Applying the aforesaid principle of law, to the facts of the present case, I find that the petitioners are named as accused persons in the promptly lodged F.I.R., specific role of causing injuries to the deceased and the eye-witnesses has been attributed to them, hence there exist reasonable grounds for believing that the petitioners are involved in a case which falls within the prohibitory clause and they are not eligible for bail.
7. The investigation in this case is not above-board, as observed above, hence not worthy of credence.
8. 1 rind considerable force in the submission of the learned Law Officer that the police has no power or authority under law to amend the charge of their own and to submit the challan in the present case under section 304, P.P.C., without the approval of the Prosecution Branch. It is prerogative of the Court to decide what offence, if any, the accused has committed.
9. The upshot of the above discussion is that there is no force in this petition, which is dismissed.
Before parting with this order, I may observe that as Javid Iqbal petitioner No.1 has to appear in the Intermediate (Annual) Composite Examination, 1991, on 9th of February, 1991, First Group under Roll No.22696, at Government Islamia College, Railway Road, Lahore, the Superintendent, District Jail, Lahore, is directed to approach the District Administration (District Magistrate/S.S.P., Lahore) for making arrangement for his appearance in the examination on the said date. A copy of this order be sent to the District Magistrate and the S.S.P. Lahore for compliance and necessary action. The Law Officer is also directed to inform the relevant authorities.