' Mst. Ghulam Jannat complainant got recorded F.I.R. No,32, dated 30-1-1995 at Police Station Minchinabad under section 302/34, P.P.C. About the murder of her husband Ghulam Rasool on 30- 1-1995 at Ishawela in her house situated in Mauza Adhan Wah, Tehsil Minchinabad, District Bahawalnagar. It is narrated in the F.I.R. That she was issueless. On 30-1-1995 at Ishawela after taking the dinner she and her husband Ghulam Rasool deceased were sitting near the hearth. The lantern was on in the courtyard. She went towards the outer door after collecting the utensils. In the meanwhile Hussain'Ahmad Shah alias Madni Shah petitioner-accused armed with a rifle alongwith Khalil Ahmad Shah and Saeed Ahmad Shah each armed with gun arrived there who raised the Lalkara that they would take the revenge of the murder of their brother Bashir Ahmad. They started the firing. The fire effected by Khalil Ahmad Shah hit the left flank of Ghulam Rasool while Hussain Ahmad Shah alias Madni Shah fired with his rifle which hit the right side of the head of Ghulam Rasool. Saeed Ahmad Shah co-accused raised the Lalkara and made the ineffective firing. Ghulam Rasool fell down. Ahmad Shah and Khadim Hussain P.Ws. Were attracted to the spot who also saw the occurrence. Ghulam Rasool was removed to Civil Hospital, Minchinabad who expired. The post- mortem examination on the dead body was conducted. The Medical Officer found three injuries on the person of the deceased. He declared injury No,1 as "Shajjah-e-Khafifah" and caused by blunt weapon which was on the head of the deceased. Hussain Ahmad Shah alias Madni Shah was arrested who led to the recovery of the licensed rifle of his brother from his house while under police arrest on 4-5-1995. During the investigation the petitioner took up the plea of alibi to the effect that he was not present in the Mauza on the alleged date and time of occurrence. In this respect the evidence was collected by the Investigating Officer on 5-5-1995. These are the affidavits of Noor Muhammad, Taj Muhammad, Muhammad Anwar Shah, Muhammad Shah, Muhammad Ahmad Shah and Muhammad Sarwar Shah, which are all, dated 3-5-1995. In all these affidavits the absence of Hussain Ahmad Shah alias Madni Shah petitioner-accused from the place of occurrence at the time of occurrence has been sworn in. During the investigation the attempts were made by the Investigating Officer to settle the matter on the oath of Holy Qur'an in a mosque. The complainant party did not take part in such an affair. However, some persons stated for this accused before the Investigating Officer who gave the weight to the same. The Investigating Officer and the D.S.P./S.D.P.O. On the basis of the affidavits and the statements of the respectables on Holy Qur'an declared Hussain Ahmad Shah alias Madni Shah as innocent.
Muhammad Ahmad Shah P.W. Also submitted the affidavit before the Court of Session exonerating Hussain Ahmad Shah alias Madni Shah petitioner-accused. Learned Sessions Judge, Bahawalnagar dismissed the bail application of this petitioner who has filed this petition to try his luck to be admitted to bail.
2. I have heard the learned counsel for the petitioner as well as learned State counsel and gone through the record before me. Learned counsel for the petitioner has raised the following points to ornament his arguments for the purpose of admission of Hussain Ahmad Shah alias Madni Shah petitioner-accused to bail:--
(i) That there is conflict between the ocular account and the medical evidence because according to the eye-witnesses Hussain Ahmad Shah alias Madni Shah petitioner-accused fired with his rifle which hit the right side of the head of Ghulam Rasool deceased while in the postmortem report the medical witness has mentioned injury No,1 on the head as "Shajjah-e-Khafifah" caused by blunt weapon.
(ii) That Hussain Ahmad Shah alias Madni Shah petitioner-accused has been declared as innocent in view of the affidavits submitted by Noor Muhammad, Taj Muhammad, Muhammad Anwar Shah, Muhammad Shah, Muhammad Ahmad Shah and Muhammad Sarwar Shah which have made out that he was not present at the place of occurrence at the time of occurrence.
(iii) That the respectables of the area on the Holy Qur'an testified about the innocence of this petitioner.
(iv) That Muhammad Ahmad Shah P.W. Has sworn in his affidavit about the innocence of Hussain Ahmad Shah alias Madni Shah which fact is mentioned in the order, dated 19-7-1995 passed by the Sessions Judge, Bahawalnagar.
3. On the contrary learned State counsel argued that it is not the stage to examine the contradiction highlighted by the learned counsel for the petitioner in the ocular evidence and the medical evidence. He added that there is no provision in the Criminal Procedure Code to settle the matter on the oath of Holy Qur'an and that also by the strangers to the case and that the affidavits of different persons submitted on 5-5-1995 which were got attested on 3-5-1995 by different persons who appeared in defence have no legal force because such type of evidence should have been produced at the earliest stage which could be coined afterwards. According to him the statements of Mst. Ghulam Jannat complainant and Khadim Hussain P.Ws. Have been corroborated by the medical evidence and the recovery of rifle at the instance of Hussain Ahmad Shah alias Madni Shah petitioner-accused and thus he is prima facie liable under section 302/34, P.P.C. Which falls under the prohibitory clause and is not entitled to be admitted to bail.
4. After making an analysis and dissection of the arguments addressed by the learned counsel for the parties and going through the record before me I am of the view that Hussain Ahmad Shah alias Madni petitioner-accused is not entitled to be admitted to bail. No doubt learned counsel for the petitioner has tried to highlight the contradiction in the ocular evidence and the medical evidence but it is not the stage to examine this aspect of the matter as it touches the merits of the case. Further, the Medical Officer seems to have given the intentional concession by expressing that injury No,1 on the head was "Shajjah-e-Khafifah" caused by blunt weapon. In para. No,VI (Remarks by Medical Officer) this opinion has been expressed in a new line after closing the upper portion. I am tempted to express that with respect to an injury on the deceased the Medical Officer could not give his opinion that the injury was "Shajjah-e-Khafifah" especially when the seat of injury was the skull/head. About this aspect as well as the weapon said to have been used the matter can properly be appreciated during the trial and I do not give weight to this assertion raised by the learned counsel for the petitioner-accused.
5. The affidavit sworn in on 3-5-1995 by different witnesses and submitted on 5-5-1995 before the Investigating Officer in favour of Hussain Ahmad Shah alias Madni Shah petitioner-accused about his plea of alibi cannot be given the weight in view of the fact that the occurrence is dated 30-1- 1995. This petitioner is named in the F.I.R. And he must be hiding hither and thither. In between his nears and dears must be contacting the Investigating Officer. The defence plea has also to be taken up at the earliest B and belated stand in the matter can be termed to be self-created and afterthought. A statement recorded under section 161, Cr.P.C. In favour of the prosecution with a delay of 48 hours after the occurrence becomes doubtful and is out of consideration being the outcome of deliberations. In this regard C suffice is to refer to Budho v. The State PLD 1965 (W.P.)
Kar.
76. Keeping in view the shape of scale of justice the affidavits of different witnesses submitted in defence of Hussain Ahmad Shah alias Madni petitioner-accused on 5-5-1995 which were got sworn in on 3-5-1995 can also not be given the weight as date of occurrence is 30-1-1995. It was a futile attempt on the part of the Investigating Officer to help this petitioner-accused. There is no provision in the Criminal Procedure Code to get settled such matters on the oath of Holy Qur'an of persons strangers to the case. The holding of such "Panchayats" even in mosques is devoid of any legal force. Such methods are adopted by the police to help the accused persons. If such a working is approved then what is the necessity of holding the investigation according to the provisions incorporated in Criminal Procedure Code. It has become a trend in the Police Department that the investigations are conducted by the Police Officers on personal whims and figment of brain of the concerned Investigating Officer. If the weight is given to such a working there would be judicial anarchy resulting in administrative chaos whereby law and order situation would worsen.
6. No doubt Muhammad Ahmad Shah eye-witness mentioned in the F.I.R. Has exonerated the petitioner-accused Hussain Ahmad Shah alias Madni. However, the complainant Mst. Ghulam Jannat and Khadim Hussain (eye-witnesses) are still supporting the prosecution case and this aspect of the matter is of no help to the petitioner-accused.
7. The petitioner is an influential person who has been helped by the police during the investigation.
He became fugitive of law. His abscondence cannot be termed to be the outcome of his fear or his apprehension that he would be facing the coercion at the hands of the police. This aspect of the matter is very important so far as the facts and circumstances of this case are concerned.
8. In the F.I.R. There is no dispute about the initial criminality of the assailants. The petitioner was known to Mst. Ghulam Jannat as well as Khadim Hussain P.W. The investigation was almost complete within some days. The Investigating Officer lingered on the investigation on one pretext or the other and particularly impressing upon the complainant to settle the matter through "Panchayat" (meeting of village elders) or through special oath on Holy Qur'an in the mosque and that also from the strangers to the case. The investigation is conducted to collect the evidence to be produced during the trial and working of the Investigating Officer has to revolve around the known canons of law/rules which have to guide them. It shall not be out of place to refer to section 163 of the Qanun-e-Shahadat, 1984 which for the purpose of convenience is reproduced as under:- - "163. (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.
(2) The Court may pass such order as to costs and other matters as it may deem fit.
(3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases."
In criminal matters the acceptance or denial of the fact(s) on oath during the trial and on the same reasoning during the investigation is not provided/allowed. Thus, the opinion if any on the basis of the oath would be considered to be devoid of legal force. If the matters during the investigation are to be disposed of on oath then the texture of whole of the working in the matter becomes unnecessary as one Police Officer can perform such a duty even in the office of the Superintendent of Police of District without visiting the spot or collecting the evidence which is not the intention of law. If such type of working is approved there may not be chaos in the society with the passage of time. Hence in the instant case the working of the Police Officer(s) during the investigation is based on conjectural hypothesis which cannot be j approved by giving the weight at this stage. However, the plea of alibi or the facts of attack and defence which are tried to be settled through the "Panchayat" or oath on Holy Qur'an may be canvassed and proved during the trial. At this stage I deem it proper to refer to the ruling published as Mst. Bashiran Bibi v. Nisar Ahmad and others PLD 1990 SC 83 wherein it has been enunciated that procedure of swearing on Holy Qur'an (oath proceedings) is not applicable in criminal proceedings in view of section 163 of the Qanun-e-Shahadat, 1984. It has also been held in this ruling that the sanctity of the Holy Qur'an is such that it cannot be brought in oath and while disposing of the bail application it was not right/correct to countenance the procedure whereby one of the accused was permitted to take oath in a mosque with regard to guilt or innocence of himself and other accused persons and that approval of such a procedure would throw the entire administration of criminal justice into disarray due to prevalent moral standards. In the instant matter the oath on Holy Qur'an of the strangers has been given the weight. I express my sentiments (view) that by adopting such a working the Investigating Officer(s) make the attempt to desecrate the Holy Qur'an who should refrain themselves therefrom lest the wrath of God may not fall. It is simply surprising that the senior Officer of the rank of D.S.P./S.D.P.O. Also affirmed the said working of the Investigating Officer.
9. I, accordingly, agree with the learned State counsel that it is not a case for the admission of this petitioner to bail who is prima facie liable under section 302/34, P.P.C. Which falls within the prohibitory clause.
10. In view of the aforesaid state of affairs, analysis of the matter and discussion; I see no merit in this petition and dismiss the same.