' Abdul Hameed seeks bail in a case registered at Police Station Bureivala for offences punishable under section 302/334/148/149/440 P.P.C.
2. According to the allegations as contained in the F.I.R., complainant's brother Khalid Mehmood was murdered by Ghulam Mustafa and his son Ghulam Hussain armed with rifles, Muhammad Anwar armed with .12-bore gun, Abdul Hameed (petitioner herein) armed with pistol and two other persons on 6-6-1995 at about 6-15 p.m. The F.I.R. Was lodged promptly on the same day at 8-45 p.m. The complainant reported that the land belonging to his grandfather was obtained through fraud by Ghulam Mustafa and a suit to challenge the fraudulent transaction was pending against Ghulam Mustafa and his sons in the Civil Court. Temporary injunctions protecting possession of the complainant party was granted by the trial Court and the suit was fixed for hearing on 7-6-1995.
However, on 6-6-1995 the aforesaid accused persons came in Pajero Jeep No,VRB-22 and a Fiat Tractor and raised Lalkara that they would get possession of the suit land by force. Abdul Hameed petitioner was driving the tractor and he allegedly started sloughing Killa No,12 which was having crops of cotton and Charri. On having been asked to desist from doing so Ghulam Hussain fired with his rifle, which hit Khalid. Mehmood. Other accused are also alleged to have resorted to indiscriminate firing with their respective weapons. Khgid Mehmood died of the injury suffered by him at the hand of Ghulam Hussain.
3. The bail was granted by me to Abdul. Razaq co-accused on the consideration that he was not named in the F.I.R. The case of the petitioner has come before me at the Principal Seat in view of the dictum laid down in Zubair's case.
4. Learned counsel for the petitioner in support of his prayer for grant of bail to the petitioner has made the following submissions:---
(i) initially only four accused persons were named in the F.I.R. The two unnamed accused were later on identified as Abdul Razaq and Lal Din through supplementary statement of the complainant. In addition thereto seven other persons were also involved through the statements of Muhammad Suleman and Iqbal P. Ws. In this way 13 accused persons were found involved in the commission of the crime by the police. Out of the 13 accused persons 5 are absconders. One of the absconders is Ghulam Hussain who fired the fatal shot. According to the learned counsel, he has fled the country and reportedly enjoying in London. Three persons have been enlarged on bail by the Additional Sessions Judge, three have been discharged by the Illaqa Magistrate on the police report while one has been granted bail by this Court. The petitioner is the only accused person who is in jail since 28-6-1995. According to the learned counsel, since the main accused person who actually committed the murder has already absconded, the petitioner who did not resort to firing deserves to be enlarged on bail.
(ii) Inspector Range Crime, as per his finding recorded on 25-9-1996, held that Abdul Hameed petitioner was not present at the time when the firing was made because on sensing danger of armed conflict between the parties he had slipped away from the scene. On this opinion of the Investigating Inspector the petitioner is entitled to be enlarged on bail. Learned counsel in this behalf has vehemently argued that Abdul Hameed was merely a driver of the tractor and had no connection with the motive stated in the F.I.R. He has also argued that his client cannot be kept in jail for vicarious liability.
(iii) The petitioner is entitled to bail on the rule of consistency as his case is better than that of Abdul Razaq who was granted bail by this Court.
(iv) The case of the petitioner is covered by subsection (2) of section 497, Cr.P.C., as it is a matter of further inquiry as to what actual role was played by the petitioner during the occurrence.
5. The complainant is present in person. He has stated that Ghulam Mustafa accused is owner of some agricultural land in Chak No,265. Anwar and Abdul Hameed accused are residents of Chak No,265 and they have obtained land on lease from Ghulam Mustafa. Anwar is otherwise son-in-law of Mustafa. The tractor driven by Abdul Hameed is owned by Anwar accused. He has thus submitted that Abdul Hameed is not merely the driver of the tractor but had deep connection with the accused party. He has controverted the submission made by the learned counsel for the petitioner that Abdul Hameed was declared innocent in the investigation conducted by the Range Crime. He has submitted that in fact D.S.P., Range Crime was the investigating officer and he had finally found that Abdul Hameed was fully involved in the commission of the crime and recommended that he and other accused persons should be challaned. The investigation of the D.S.P., Range Crime was duly confirmed by the D.I.G., Range Crime. He has submitted that the role played by Abdul Hameed is by no means insignificant. He came with tractor and actually started destroying the crops standing in Killa No,12 with the tractor driven by him. It is also submitted by him that Abdul Hameed was armed with a pistol and he also resorted to firing and a pistol has been recovered from him during the investigation.
6. I have examined the Zimni dated 20-10-1996 recorded by the D.S.P., Range Crime. According to his findings the disputed land was in possession of the complainant party and with a view to illegally occupy the same the occurrence took place. According to him Ghulam Hussain, Mustafa, Anwar, Abdul Hanieed (petitioner herein), Razaq, Ghulam Muhammad, Muhammad Hand, Lal Din, Akhtar Ali, Muhammad Irshad, Muhammad Hussain, Zafar and Kala Gujar are all involved in the commission of the crime. Based on this finding he recommended that all these persons should be challaned. I have also examined the Zimini dated 25-9-1996 which has been relied upon by the learned counsel for the petitioner. According to this Zimni recorded by the Inspector Range Crime, Abdul Hameed had already slipped away from the spot on sensing danger when he saw co- accused Abdul Razaq etc. Sitting with weapons. He forwarded his report to the D.S.P., Range Crime to whom the investigation was entrusted under the order of the D.I.G., Inspector Range Crime was not the investigating officer, therefore, his findings/opinion cannot be given much weight. The opinion of the D.S.P., Range Crime, who was the investigating officer is specific and clear that Abdul Hameed is also involved in the commission of the crime. The prosecution witnesses in their statements recorded under sections 161, Cr.P.C. Have also fully implicated Abdul Hameed for having played a vital role during the occurrence. His case is still worse if he had opted to be hired as a driver of the tractor to take forcible possession of the land in dispute.
7. Rule of consistency is not applicable in the present case. Bail to co-accused Abdul Razaq was granted by this Court on the consideration that he was not named in the F.I.R. And his name was disclosed in the supplementary statement. The case of the present petitioner is clearly distinguishable. His name appears in the F.I.R. And a specific role of trying to take illegal possession of the land by ploughing the fields with his tractor is ascribed to him. Indeed the F.I.R. Was lodged promptly, in that, the occurrence took place at 6-15 p.m. And the report was made at 8-45 p.m. On the same day while the police station is situated at 9 miles from the place of occurrence. The petitioner was also found in the investigation conducted by the local police.
8. For what has been stated above, I am of the view that there appears reasonable grounds for believing that the petitioner was fully involved in the commission of the crime as alleged in the F.I.R.
Resultantly, this bail application is dismissed.
9. During the course of arguments it transpired that Ghulam Mustafa, Muhammad Anwar and Lal Din have been discharged by the Illaqa Magistrate on 25-7-1995 on police report. The prosecution witnesses had fully implicated these persons in their statements recorded under section 161, Cr.P.C.
In these circumstances, prima facie, the Magistrate could not discharge them on the basis of police opinion that they were innocent. Such a finding can be given by the competent Court or by this Court in quashment proceedings. The Assistant Advocate-General, Multan should move appropriate application in the Multan Bench of this Court for annulment of the aforesaid order of the Illaqa Magistrate. It may, however, be observed that anything said herein will not prejudice either side during the trial or the proceedings to be initiated by the law officer.