' The petitioner is accused of an offence under sections 302/324/148/149, P.P.C. Vide F.I.R. No,145 .Of 2001 registered with Police Station Rangpura, Sialkot, on 21-3-2001.
2. The prosecution case, in brief, as reflected from the F.I.R. Registered at the instance of Ghulam Hussain is that his son Muhammad Asif alias Bittu was contesting election for membership of Union Council Karimpura. On 21-3-2001 at about 8-45 a.m., the complainant alongwith his deceased son as well as two other persons were proceeding toward Polling Station of Murrey College, Sialkot.
When they reached in front of shop of Muhammad Sagheer, milk seller, two cars, one car carrying four accused-persons including the present petitioner Muhammad Waseem Nawaz alias Chhina Loola who was armed with .444 rifle and was occupying the front seat and in the other car Yasir and four other persons who too were armed with deadly weapons were sitting. They stopped their cars and alighted therefrom. Ch. Muhammad Nawaz and Ch. Riaz alias Riaza raised a Lalkara that they (deceased and the members of the complainant party) be finished as they had taken side with Haider Pehlwan in the election. Faheem Nawaz alias Gola (the main accused and brother of the petitioner) fired a shot hitting Asif alias Bittu who fell down and subsequently succumbed to the injury. The petitioner Muhammad Waseem Nawaz alias Chhina Loola (in Punjabi dialect a person disabled from legs is called Loola) fired a shot while he remained sitting inside the car. As a result of which one person, namely, Abdul Majeed sustained injury and fell down. Muhammad Waseem Nawaz petitioner continued firing. The other co-accused had also resorted to indiscriminate firing.
The accused persons after the occurrence fled away.
3. The motive was stated to be that Rizwan alias Mithu son of Muhammad Riaz alias Riaza was murdered on 18-3-2001. The petitioner and his co-accused suspected that the deceased was friend of the accused in that case and that he was also a candidate against them from the party of Haider Pehlwan.
4. The learned counsel sought bail on the grounds that the petitioner was an infirm and disabled person and he suffered from disability since 1989 and as such he was unable to move about; that Abdul Majeed passerby injured has sworn an affidavit exonerating the petitioner; that he has been implicated on account of previous enmity; that he is not a previous convict; that the attribution of injury to the petitioner does not find support from the medical evidence and lastly that there was no direct motive against the petitioner and in fact the motive was against Riaz alias Rim.
5. As against that the learned counsel for the State assisted by learned counsel for the complainant has opposed the grant of bail on the grounds that the petitioner has been nominated in the F.I.R. Which was promptly lodged with Police Station Rangpura, Sialkot, located at the distance of 1-1/2 kilometres; that the murder took place at 8-45 a.m. And the report was made at 9-10 a.m.; that the petitioner has a criminal history to his discredit and remained involved in number of criminal cases and that incriminating recovery was effected at his instance on 22-3- 2001 soon after his arrest, therefore, there is no reasonable ground to believe that he has not committed the offence alleged against him.
6. Before the learned counsel commenced his arguments in support of this petition, it was pointed out that report from the Forensic Science Laboratory had not been received but the learned counsel opted to address arguments even in absence of the report as according to him the concession of bail could be extended on the strength of the present record.
7. Arguments heard and record perused. The main thrust of argument in support of the bail application is regarding the disability of the petitioner. According to learned counsel, the petitioner is a disabled person. He is unable to walk on his own. He has complete paralyses of the lower limbs.
In support of his contention, a report by Medical Board dated 31-3-1999 has been annexed according to which he was examined by Orthopaedic Surgeon to examine the petitioner's inability to walk. The petitioner has a history of receipt of bullet injury to his spin in 1989 which developed paraplegia of lower limbs due to old bullet injury to spine. It is, therefore, inferred that the attribution made to the. Petitioner, prima facie, cannot be relied and as such the case against him is open to further inquiry. The argument is not tenable and suffers from ill-assessment of the prosecution. As per allegation levelled in the F.I.R. By the complainant who is father of the deceased and reported the matter without any loss of time, the petitioner was seen at the place of occurrence inside the car and he resorted to firing while he remained sitting on the front seat. It is not the case of the prosecution that he came to the place of occurrence on foot or he fired shot while standing.
Therefore, disability suffered by the petitioner did not in any manner belie the allegations against him. Apart from that as referred to by the State and noted by the learned Additional Sessions Judge as well, the petitioner remained involved as accused in number of criminal cases. The list is as follows:--
(1) Case F.I.R. No,216 of 1997, dated 7-9-1997 under section 324/34, Police Station Rangpura, Sialkot.
(2) Case F.I.R. No,278 of 1987, dated 1-8-1987 under section 307, P.P.C. Police Station Rangpura, Sialkot.
(3) CaseF.I.R. No, 749 of 1999, dated 18-12-1999 under section 324/34, P.P.C., Police Station Hajipura, Sialkot.
(4) Case F.I.R. No,195, dated 10-6-2000 under sections 365-A/324, P.P.C. Police Station Sadar, Sialkot.
(5) Case F.I.R. No,201, dated 10-6-2000 under sections 13/20/65, Arms Ordinance, Police Station Saddar, Sialkot.
(6) Case F.I.R. No,145, dated 21-3-2001 under sections 302/148/149, P.P.C. Police Station Rangpura, Sialkot.
(7) Case F.I.R. No,148, dated 22-3-2001 under sections 13/20/65, Arms Ordinance, Police Station Rangpura, Sialkot.
(8) Case F.I.R. No,149, dated 31-5-1994 under sections 353/352/148/ 149, P.P.C., Sialkot.
' If the allegation of the prosecution is assessed by keeping in view the petitioner's past criminal history, it becomes evident that he was arrayed as an accused in all these cases after 1989 when he was already suffering from the disability. Specific modus operandi to commit offence while sitting appears to have been adopted.
8. The learned counsel has further supplemented his contention rather vigorously that the victim Abdul Majeed has sworn an affidavit exonerating the petitioner, therefore, according to him, there remains no credible evidence with the prosecution against the petitioner. It is true that a copy of affidavit has been placed on file and the injured person also appeared before the learned Additional Sessions Judge and supported the petitioner's bail plea. The evidence of the injured person is although valuable piece of evidence yet the same is not the only evidence against the petitioner. The complainant is also an eye-witness apart from other P.Ws. Mentioned in the F.I.R. The statement of the complainant is supported by the factum of recovery of rifle which was effected at the instance of the petitioner. Apart from the rifle, 27 empties of .444 rifle and six empties of .30 bore pistol were taken into possession from the place of occurrence. The empties as well as the rifle have been despatched to the Forensic Science Laboratory. The complainant's version is also supported by the evidence of motive set up against the petitioner, the medical evidence and by the statement of the injured which he made during investigation under section 161, Cr.P.C.
Submission of affidavit in presence of other evidence with the prosecution cannot be accredited as such. It has been noticed that attitude of the injured witness has rather been queer so much so he engaged a counsel who appeared in Court in support of the accused-petitioner's application. It is almost unknown that the P.W. Would engage a counsel to support the plea of an accused. On query as to who had caused injury to Abdul Majeed, there is no answer either with the injured or with his learned counsel.
9. I do not want to make any further comments on the contents of the affidavit suffice it to say that in the presence of other evidence with the prosecution apart from the statement of injured, there is ample evidence against the accused to connect him with the commission of the crime. In this behalf, the learned counsel for the complainant has relied upon the case of Sanaullah and 3 others v., The State 1983 SCM R 15 wherein it was observed by their Lordships of the Supreme Court: "Even if such witness be assumed to have not seen occurrence, complainant being also a witness would support prosecution case". Yet another case on the subject is of Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 where a question of guilt or innocence sought to be resolved through oath. It was observed: "Approval of such a procedure by High Court would throw entire administration of criminal justice into disarray due to prevalent moral standards".
10. It was lastly argued that as per proviso to section 497, Cr.P.C., sickness or infirmity has been treated as a valid ground to enlarge accused-persons on bail. In support of this contention, reliance is placed on Ghulam Muhammad v. The State PLJ 1983 SC 334 where an accused suffering from .B. Was allowed bail on the ground of ill-health. There is no cavel with the proposition that sickness and infirmity has been treated as a valid ground for ail but the infirmity in the form of disability from which the petitioner is suffering can hardly be treated a sound reason to extend him the concession of bail. He is suffering from disability which he is carrying since 1989 and hereafter it is the 9th case of the similar nature wherein the petitioner stands involved. The disability is also not of the nature as a result of which his health is likely to deteriorate or the same may be hazardous to his life. The disability is also not of a nature as a result of which the petitioner could not have committed the offence alleged against him. As noted above, the petitioner and his co-accused came in two cars and the petitioner kept on firing while sitting in the front seat of the car. The manner in which the attack was launched and the number of empties recovered from the place of occurrence, prima facie, render the petitioner liable for the offence under section 302, P.P.C. By the application of principle of vicarious liability.
11. For what has been discussed above, I am not persuaded to extend concession of bail to the petitioner and this application is dismissed.
12. Any observation made herein is tentative in nature and is meant to dispose of this bail petition. It would not in any way influence or prejudice the mind of the learned trial Court.