Sajwar Khan complainant got recorded F.I.R. No.88 dated 7-3-1995 at P.S. Hasi1pur, District Bahawalpur under section 302/148/149, P.P.C. About an occurrence which took place on 7-3-1995 at 5-30 p.m. Within the area of police Station Hasilpur, District Bahawalpur. According to the complainant, his son Falak Sher (deceased of this case) had obtained on lease some landed property wherein he had sown the wheat. On 7-3-1995 his sons Falak Sher and Zahoor Ahmad and his nephew Irshad Ahmad set at work the tubewell. They closed the tubewell at 5-00 p.m. They reached Basti Kalsan. They were surprised by Allah Bakhsh petitioner-accused armed with rifle, Muhammad Yar accused armed with gun, Muhammad Amin accused armed with gun, Mumtaz and Riaz accused each armed with Sotas. They threw the challenge. Allah Bakhsh, Muhammad Amin and Muhammad Yar fired upon them with their respective weapons which hit Falak Sher who fell down. Zahoor Ahmad and Irshad Ahmad P.Ws. Went to the nearby 'Khal' whereby they were saved. Falak Sher died at the spot. Due to the firing and the alarm raised by him and his companions Riaz as well as Allah Ditta arrived at the spot. The accused persons fled away alongwith their respective weapons. The cause of occurrence is stated to be that Allah Bakhsh petitioner-accused suspected illicit relations of Falak Sher deceased with his sister Mst. Roshan.
2. The initial investigation was conducted by Maqsood Ahmad Laghari S.I. Police Station Hasilpur.
From 25-3-1995 Jamaat A.I Bukhari Inspector/S.H.O. Police Station Hasilpur investigated the case.
He joined many persons in the investigation who was informed that before the occurrence Falak Sher also fired with his .303 rifle and that Muhammad Amin co-accused fired at Falak Sher who expired. He examined Sajwar Khan complainant, Zahoor Ahmad and Irshad Ahmad eye-witnesses on 10-4-1995 for the second time. The method adopted by him was that he recorded the questions and answers. Afterwards expressing that the eye-witnesses were closely related, that the complainant was not willing to get settled the matter on special oath, that there were discrepancies in the statements of the complainant and the eye-witnesses and that Allah Bakhsh, Mumtaz and Riaz agitated their innocence; he declared Allah Bakhsh as well as Mumtaz and Riaz as innocent. His investigation was verified by the D.S.P./S.D.P.O. Hasilpur. Thereafter Allah Bakhsh, Mumtaz and Riaz have been placed in column No.2 of the challan indictment submitted under section 173, Cr.P.C. And put them at the mercy of the Court.
3. The bail application of Allah Bakhsh petitioner has been rejected by the lower Court who has filed this petition to try his luck to be admitted to bail.
4. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record before me. Placing reliance on Muhammad Mumtaz and another v.
The State (1988 SCM R 1452) learned counsel for Allah Bakhsh petitioner-accused argued that the Investigating Officers have declared Allah Bakhsh accused as innocent who has been placed in column No.2 of the challan indictment and for that reason he is entitled to be admitted to bail. He laid the emphasis that Falak Sher himself was armed with a rifle who was notorious person of the, area and lived at a distance of 15 miles from the place of occurrence and due to the firing effected by Falak Sher he was fired at by Muhammad Amin. On the contrary learned counsel for the State laid the emphasis that after recording the statements of the complainant and the eye--witnesses under section 161, Cr.P.C. There was no need on the part of Jamaat A.I Bukhari, Inspector/S.H.O. To damage the prosecution case by recording the statements of the complainant and the eye- witnesses in question and answer form which was a noval method adopted by him. He added that the inter se relationship of the P.Ws. And the deceased, the innocence canvassed by Allah Bakhsh, Mumtaz and Riaz and the non-settlement of the dispute through special oath cannot form the basis of the opinion during the investigation about the innocence of the accused persons. No doubt it has been held in the aforesaid ruling published as 1988 SCM R 1452 that detailed comments on the police diary and on the working of the Investigating Officer cannot be made. In this regard I have to express that the circumstances of each case have to be kept in mind. After recording the statements of the complainant and the eye-witnesses by Maqsood Ahmad, S.I. There was neither any need nor justification to record their statements in question and answer form which was done intentionally to damage the case of the prosecution. Such practice needs to be disapproved during these days when law and order situation is worsening. It is during the trial that after recording the statement of the witness the cross-examination is conducted by the adverse party. The second round of recording of statements of the complainant and the eye-witnesses by Jamaat A.I Shah, Inspector/S.H.O. P.S. Hasilpur shows that as if he himself was holding the trial which definitely is not his jurisdiction and function. In his opinion he has not mentioned the discrepancies in the statements of the P.Ws. And has passed a general remark thereof. There is no provision in the Criminal Procedure Code that a person would be declared as accused or he would be considered as innocent in case the adverse party would not state on special oath. The mere relationship of the P.Ws. Is no ground to establish the innocence of the accused. This is the job of the Trial Court before whom the weapon of cross-examination has also to be used by the adverse party.
Without prejudice, in some cases the close relatives may be the reliable witnesses. The mere agitation made by Allah Bakhsh, Mumtaz and Riaz about their innocence is no ground to declare that they are innocent. Consequently I do not give the weight to the opinion of the Investigating Officers about the innocence of Allah Bakhsh petitioner-accused: The opinion based on their whims and figment of brain has to be discarded.
5. At this stage I agree with the learned counsel for the State that had Falak Sher been armed with rifle the same would have been lying near his dead body especially when according to the accused party he lived at a distance of 15 miles from the place of occurrence. No rifle has been taken into possession and this aspect of the matter mentioned in the investigation need not be given the weight.
6. Learned counsel for the petitioner argued that Allah Bakhsh is alleged to have fired with rifle but no bullet was recovered by the Medical Officer during the post-mortem examination who recovered four pellets only and that there was no exit wound. Some bullets were taken into possession from the place of occurrence by the police on the first visit of the Investigating Officer.
The deeper merits of the case cannot be analysed at this stage as rightly pointed out by the learned State Counsel.
7. The occurrence took place at 5-30 p.m. On 7-3-1995. It could not be' darkness at that time. The eye-witnesses were accompanying the deceased. Allah Bakhsh accused has been named in the F.I.R. And specific role has been attributed to him. In the circumstances his involvement in the present occurrence prima facie stands proved and the offence of murder with which he is charged falls under the prohibitory clause who, as such, is not entitled to the grant of bail.
8. I, therefore, dismiss this application.