' Mubashar accused/petitioner has applied for pre-arrest bail in case F.I.R. No,80/95, dated 22-6- 1995 offences under section 302/109, P.P.C.. Police Station Chuhang, Lahore.
2. F.I.R. Was lodged by Anwar Ali, complainant on the same day at 7-30 p.m. The complainant briefly alleged in the F.I.R. That he was resident of village Manowal. On 22-6-1995 at 6-00 p.m. He, Muhammad Arshad and Mukhtar Ahmad P.Ws. Were present at the shop of Noor Muhammad, situated in village Manowal. Noor Muhammad shopkeeper was not present. Munawar Ali his brother arrived in the Chowk on a tractor. In the meantime, Mubashar son of Manzoor Hussain came on a motor-cycle and stopped the same in front of the tractor. Mubashar fired two shots with .12 bore gun at Munawar Ali. The fire hit the face, temporal region, shoulder and hands.
Munawar Ali succumbed to the injuries. The accused left his motor-cycle on the spot and ran away on foot. It was alleged that the accused committed the offence in consultation with his. Brother Asad, his father Manzoor Hussain, uncle Pervaiz and grandfather Haider Ali. The motive stated was that 40/45 years ago complainant party was involved in the murder of great grandfather of Mubashar accused. It was further alleged that in 1990 the accused fired at the complainant and a case was registered against him. During investigation, the Investigating Officer recorded the statements of Ghulam Ali and Muhammad Ali. These witnesses in their statements stated that few days prior to the occurrence all the accused were present in front of their under-construction house, near the village and they conspired to kill the deceased. The investigation was transferred to Mubashar Ahmad, S.P., Lahore. The said S.P. Conducted thorough investigation about all the important aspects of the case.
3. Asad, Pervaiz, Manzoor and Haider Ali applied for bail before arrest in this Court vide Criminal Miscellaneous No,3232/B of 1995. The said accused was granted bail vide detailed order on 17-8- 1995. Learned counsel for the petitioner, inter alia, submitted that Muhammad Yar, Investigating Officer/S.H.O., Police Station Chuhang was a close friend and Pir Bhai of the complainant. He in connivance with the complainant party involved all the family members i,e, grandfather, father, uncle and brother of the petitioner in the case. Hundreds of residents of the village and the area protested against the false implication of the petitioner and his family members in the case but the Investigating Officer refused to listen to them. Consequently, D.I.-G., Lahore transferred the investigation of the case to a senior Police Officer i,e, Mubashar Ahmad, S.P., Lahore. The learned counsel, inter alia, submitted that the motive alleged is far-fetched and too old for the commission of the offence. The grandfather, father and uncle of the petitioner did not take the revenge for more has 40 years. There was no immediate incident or cause between the parties which could motivate the petitioner to commit the offence. The complainant fabricated false and ridiculous evidence of Ghulam All and Muhammad Ali regarding consultation and conspiracy of the murder by all the accused. The statements of these two witnesses were reported by the said S.P. As false and fabricated and he directed the S.H.O. To get Haider Ali etc. Accused discharged from the case. The order of discharge, dated 3-9-1995 has been annexed herewith. On these grounds, the bail of Haider Ali etc. Was confirmed by this Court.
4. Learned counsel further submitted that the arch-witness in the case i,e, Noor Muhammad the shopkeeper and Muhammad Arshad P.W. Named in the F.I.R. Appeared before the Magistrate and got recorded their statements under section 164, Cr.P.C. The copies of their applications, and statements have been placed on record as Annexures "C", "C/I" and ''D/I". Affidavit of Muhammad Arshad has also been annexed as Annexure "E". Noor Muhammad in his statement "D/I" stated that at the time of occurrence he was present at his shop. Muhammad Arshad P.W. Was also sitting on the platform (Tharra) of the shop. Munawar Ali deceased arrived at a tractor while an unknown motor-cyclist also came there. A dispute with regard to the right of way arose between them. The unknown person thereafter fired two shots at Munawar Ali and he died at the spot. Unknown accused left his motor-cycle at the spot and made good his escape. The accused was all alone and was not resident of the locality but the witness would be able to identify him, if he was produced before him. :.:Muhammad Arshad P.W. Stated in his statement "C/I", that on 22-6-1995 at 6-00 p.m. He was sitting at the shop of Noor Muhammad. Noor Muhammad was also present there.
Munawar Ali deceased came there on a tractor. From the opposite side a motor-cyClist also arrived. Regarding the right of passage, a dispute cropped up between them. The motor-cyclist had a gun, which he fired twice at Munawar Ali. Munawar Ali died at the spot. The accused left his motorcycle and made good his escape. The accused was all alone. He did not name the petitioner in his statement. Learned counsel submitted that Muhammad Arshad during investigation by the S.P. Admitted that Noor Muhammad was present at the shop. These two witnesses did not mention the presence of Anwar Ali complainant and Mukhtar P.Ws. Mubashar Ahmad, S.P. Also reported that from the circumstances and evidence available it was clear that the complainant and the witnesses mentioned in the F.I.R. Were not present at the spot and did not see the occurrence. The omplainant came to spot later on and named his nephew Mukhtar Ahmad and his cousin Muhammad Arshad as eye-witnesses in the case. Learned counsel has referred to the note of inspection of the spot by the S.H.O. Wherein he reported that the dead body was lying on the seat of the tractor, Learned counsel submitted that this important aspect supports the contention that the complainant and the eye-witnesses came to the spot much later. Had they been present at the spot, they could have intervened between the parties with regard to a petty dispute on the right of way between the motorcyclist, and Munawar Ali. Even after being injured, if the witnesses were present, they could have taken care of the deceased, put him on some cot or taken him for immediate medical treatment etc. Learned counsel further submitted that no person from the place of occurrence came forward during series of investigations conducted by different Police Officers who could claim to have seen the occurrence.. The two persons who came forward were Muhammad Arshad and Noor Muhammad shopkeeper who have clearly exonerated the petitioner from the commission of the offence. Learned counsel further submitted that motor-cycle No,2653- LNW recovered from the spot belongs to one Muhammad Aslam son of Nazir Khan. He was serving as a driver/Niak with Lt.-Col. Zegham Islam. He stated before the Investigating Officer that on 12-6- 1995 his motor-cycle was borrowed by his friend Muhammad Aslam son of Ghulam Qadir but the same' was not returned to him.
' The role of Muhammad Aslam son of Ghulam Qadir in the commission of offence has been significantly highlighted by the S.P. (Mubashar Ahmad). The said S.P. Directed the S.H.O. To trace dut the said person and associate him in the investigation so that important links in the commission of the offence could be traced out. The Police officers did not attach much importance to this vital aspect of the case. Learned counsel for the petitioner finally submitted that in the circumstances narrated above, Noor Muhammad and Muhammad Arshad were the only witnesses present at the shop and saw the occurrence. According to their statements they had not seen the petitioner nor they named him as an accused in their statements mentioned above. Learned counsel pointed out that this case has peculiar features in which as stated above almost all the family members were falsely involved in the case, therefore, there can be no allegation of abscondence against the petitioner. The petitioner's co-accused i,e, grandfather, father and other continuously joined the investigation on petitioner's behalf. After the investigation conducted by S.P., Lahore the petitioner immediately surrendered before the Court, remained on interim bail and joined investigation of the case. Being innocent there was no question of the recovery of weapon of offence from him.
Learned counsel relied on Miran Bakhsh's case reported in PLD 1989 SC 347 and State v. Mukhtar Awan reported in 1991 SCM R 322. Learned counsel prays for confirmation of the bail on the aforesaid grounds.
5. Learned counsel for the complainant has opposed the grant of bail to the petitioner. He, inter alia, submitted that the petitioner was named in the F.I.R. As the main accused who fired his gun and as a result of the same Munawar Ali died at the spot. Further submitted that case was not fit for the grant of bail before-arrest and relied on PLD 1984 SC 192 and PLD 1994 SC 133.
6. I have heard the learned counsel for the parties at great length and have perused the record.
From the tentative assessm ent of the evidence available on record it is clear that all the family members i,e, grandfather, father, uncle, brother and petitioner were involved in the case. The evidence of two witnesses in support of consultation/conspiracy was reported as fake and fabricated against all the co-accused of the petitioner. They were declared innocent and were got discharged in the case. S.P. Mubashar Ahmad after investigation reported that not a single independent person came in support of the prosecution case. It is significant that the witnesses claim to be present at the shop of Noor Muhammad but his presence was intentionally omitted by the complainant. During the investigation by the said S.P. Muhammad Arshad P.W. Stated that Noor Muhammad was present in his shop. Muhammad Arshad P.W. Of the F.I.R. And Noor Muhammad shopkeeper in their statements under, section 164, Cr.P.C. And the supporting affidavit of Muhammad Arshad P.W. Attached with the petition, asserted that they were the eye-witnesses of the occurrence and both of them did not name the petitioner as the accused. They further stated that it was a sudden row between the deceased and an unknown motor-cyclist regarding the right of passage which ultimately resulted into the ugly incident and the death of deceased at the hand of the motor-cyclist. These two witnesses did not mention the presence of Anwar Ali, complainant and Mukhtar Ahmad P.W. At the time of incident. Mubashar Ahmad, S.P. Has also doubted the presence of the complainant and Mukhtar Ahmad at the time of occurrence. There is another important circumstance of the case which gives strength to the inference. The Investigating Officer reported in the spot inspection report that the dead body was lying on the seat of the tractor. Had the P.Ws. Been present there, they would have immediately looked after Munawar Ali who was injured and would have placed him on a cot or taken steps for his immediate medical treatment.
The motive for the commission of offence is also very old and far-fetched. The incident reported in 1990 was later on patched up between the parties and the complainant did not pursue the case, therefore, it was consigned to the record room. The two authorities cited by the complainant are based on different facts and are not relevant to the present case. The principles laid down in PLD 1989 SC 347 and 1991 SCM R 322 are applicable to the facts and circumstances of the present case.
7. In view of what has been stated above, the petitioner's case is one for further inquiry. Interim to him is hereby confirmed. He shall IC furnish fresh bail bonds in the sum of Rs,50,000 with two sureties each in the like' amount to the satisfaction of A.C./Ilaqa Magistrate, Lahore. The observations given above are purely for the disposal of this petition for bail and shall not affect the merits of the case at the time of trial.
Pre-arrest .