This order will dispose of Criminal Miscellaneous No. 1179/B of 2002 and Criminal Miscellaneous No. 1080/B of 2002 as both these petitions arise out, of the same F.I.R.
2. The petitioners seek post-arrest bail in case F. I. R. No. 15 dated 16-1-2002 under sections 302/34/109, P.P.C., registered at Police Station Bara Kahu, District Islamabad.
3. Briefly, the allegations against the petitioners are that on the day of occurrence, Liaquat Hussain, complainant alongwith his brother Muhammad Banaras and nephew Asad Hussain son of Adalat Hussain were passing through the Jagiot village on their tractor, going from Moharrian to Pind Begwal and saw taxi Suzuki No.RIR-6354 in which his brother Adalat was coming to Pind Begwal. At 1-00 p.m. When taxi approached the house of Dr. Munawar, it slowed down because of a speed breaker. At that time, Gulbaz alias Shamas armed with .30 bore pistol, Ejaz armed with .30 bore pistol, Nasir Mehmood armed with .30 bore pistol and Shamraiz armed with .30 bore pistol emerged at the site. First of all, Gulbaz accused fired at Adalat Hussain who was sitting on the front seat of the taxi which hit him in his chest. Thereafter, Gulbaz, Ejaz, Nasir and Shamraiz started direct firing at Adalat deceased which hit him on his chest, abdomen, legs and head. It was alleged by the complainant that Raziq Nisar accused had been issuing threats to the complainant party and that it was on account of the abetment and conspiracy of the said Raziq Nisar, that all the accused committed the murder of Adalat deceased.
4. Malik Rab Nawaz Noon, Advocate for Shamraiz petitioner has contended that the F.I.R. Is based 'upon an unnatural and concocted version wherein the accused have been wrongly implicated. It is submitted that the police had carried out impartial investigation in the matter and according to meticulous probe had found that the petitioner was innocent. His name was placed in Column No.2 of the challan alongwith his other co-accused. He further submitted that as many as nine witnesses appeared before the police during the investigation alongwith their affidavits in support of alibi of the petitioner. The learned counsel laid great stress on the ground that the petitioner is a minor as per his school leaving certificate and birth certificate and that he is entitled to bail in accordance with the 1st proviso of section 497(1), Cr.P.C. In this context, section 2(b) of the Juvenile Justice System Ordinance, 2000 was also referred to in order to contend that the petitioner was entitled to bail under the said provision of law also.
5. The learned counsel for the petitioner placed reliance upon the case of Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCM R 30 to contend that the young age of minor accused shall provide a good ground for ball even in case of capital offence. Regarding the strength of affidavit evidence received by the police during the' investigation, the learned counsel for the petitioner relied upon the case of Muhammad Hayat and others v. The State 1988 SCM R 474 wherein affidavit evidence was relied upon. Referring to the result of the police investigation wherein the petitioner was found innocent, strength was drawn from the rule laid down in the cases of Mst. Safeena v. The State 1992 PCr.LJ 554, Dr. Muhammad Aslam v. The State 1993 SCM R 2288 and Abdur Rehman's v.
The State 1994 PCr.LJ 1020 wherein it was held that when the police who investigated the case has opined that the accused was innocent, it was a fit case for the grant of bail.
6. On the other hand, Mr. Saba Mohy--ud-Din, Advocate for the complainant opposed the grant of bail on the ground that the petitioner has been specifically nominated in the F.I.R. And a definite role of firing and hitting; the deceased had been attributed to him. It was a daylight occurrence and there was no ambiguity in the identification of the petitioner/accused. It was contended that the affidavits produced before the police could not be received as evidence of alibi. He relied upon the case of Syed Ikhlaq Hussain Shah and mother v. The State 1997 PCr.LJ 610 to contend that the evidentiary value of affidavits could only be determined by the learned trial Court and the same could not be considered as a material to attract that benefit of the provision relatable to cases which warrant further inquiry. Further reliance was placed upon the case of Muhammad Ramzan v.
The State NLR 1997 Criminal 76 in support of the contention that during the conduct of investigation, the police could not take oath on Holy Qur'an in mosque or receive affidavits of witnesses. Such a course is not permissible under the provision of the Criminal Procedure Code.
7. Regarding the plea of alibi itself, this can be examined thoroughly at trial and not at bail stage.
Reference in this regard was made to the case of Mst. Zulekha Bibi v. Abdul Samad and another 1995 PCr.LJ 1730. Learned counsel for the complainant further contended that the opinion of the police regarding the innocence of the accused was not free from doubt and that the conduct of the police itself was such that it kept on shifting its stance at different stages. The learned counsel referred to the case of Bashir Ahmad v. The State NLR 1993 UC (Criminal) 454 to state that the opinion of the police about the innocence of the accused would not entitle them to bail when the police opinion is belied by other circumstances.
Lastly referring to the contention that the petitioner was a minor and that he was entitled to bail under the 1st proviso of section 497(1), Cr.P.C. Or under section 10(7)(a) of the Juvenile Justice System Ordnance, 2000. He referred to the proviso that where a child of the age of 15 years or above is arrested, the Court may refuse to grant a bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome brutal or shocking to public morality.
8. Arguments have been heard and record perused.
9. The occurrence is said to have taken place at 1-00 p.m. On 16-1-2002. The F.I.R. Was lodged at 3- 35 p.m. On the same day at Police Station Bara Kahu which is at a distance of about 12 K.Ms. From the place of occurrence. It was a daylight occurrence and the report in the above circumstances was lodged without delay. The petitioner alongwith other co-accused was nominated in the F.I.R.
Was alleged to be armed with a .30 bore pistol and has been accused of causing direct firing upon the deceased alongwith the other co-accused which hit the deceased on his head, chest, abdomen and legs. According to the post-mortem report, there are 16 entry wounds on the dead body which cannot be attributed to a single assailant as has been stated by the taxi driver namely Inayat whose statement was recorded as late as on 20-6-2002.
10. In view of the express allegations in the F.I.R., nomination of the petitioner as an accused and the specific role attributed to him, the opinion of the police regarding innocence of the accused, which opinion itself is dubious would not itself be sufficient to extend the concession of bail to the petitioner. It is noticed that in a daylight occurrence such as the present one, there is no ambiguity in the identification of the accused.
11. The contention of the learned counsel for the petitioner that the plea of alibi of the petitioner during the course of investigation has been established through affidavits has no force. As discussed in Syed Ikhlaq Hussain Shah's case (supra) and Muhammad Ramzan's case (supra), the practice of the police of receiving affidavits of witnesses has been deprecated. The opinion of the Investigating Officer which is primarily based on the affidavits of certain persons cannot be safely relied upon. The evidentiary value of the affidavits tendered in defence can only be determined by the learned trial Court and the same could not be used by the police during investigation. Even otherwise, a perusal of the contents of the affidavits also shows that the same have been executed mechanically without much application of mind.
12. The plea regarding the minority of the petitioner and the grant of bail on that score is also devoid of force. The 1st proviso to section 497(1), Cr.P.C. Is not attracted to the circumstances of the case. The learned counsel for the petitioner is also not correct in invoking section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 to press the case of the bail of the petitioner. According to proviso to section 10(7) ibid where a child of the age of 15 years or above is arrested, the Court may refuse to grant bail, if there are reasonable grounds to believe that such child is involved in a serious and heinous offence. Thus, the grant of bail on the plea minority alone is not an inflexible rule law. Indeed, if a person be of a such age build/structure that he is capable of committing the offence accused of, the mere fact that he is marginally under the age of majority would not be a sound reason for extending bail to him.
13. The application for bail on behalf of Raziq Nisar is pressed on the ground that the said petitioner was admittedly not present at the time of the occurrence. He has not been ascribed any active role except that he was instrumental in the murder of Adalat as it was upon his abetment that the occurrence took place.
Malik Rab Nawaz Noon Advocate for the petitioner Raziq Nisar contended that it was after 11 days of the occurrence that two witnesses namely Muhammad Arif and Muhammad Yaqoob who were closely related to the complainant party were produced who alleged that the petitioner/accused had threatened Adalat deceased with dire consequences if the matter relating to the past blood fued was not patched up. It is contended that there is nothing on the record whereby the abetting of the offence has been made out against the petitioner. It is also contended that in order to saddle an accused with the role of an abettor, very strong evidence is required to show that he was the master mind and the driving force behind the whole incident. The learned counsel for the petitioner placed reliance upon the case of Syed Amanullah Shah v. State and another PLD 1996 SC 241 to submit that if Courts can grant bail to accused present at the time of occurrence who allegedly raised a Lalkara and instigated their companions to commit the crime, the case of an alleged conspirator or abettor not present at the spot stands at a much lower footing. It was contended that in the absence of any other compelling circumstances, the petitioner has made out a good case for the grant of concession of bail. It is also contended that the learned Sessions Judge while rejecting his application for bail vide order, dated 20-7-2002 relied upon the statement of the Investigating Officer. The petitioner was declared innocent and was placed in Column No.2 of the challan. However, the Investigating Officer did appear before the learned Sessions Judge and informed him that the name of the petitioner has again put in Column No.3 of the challan and that he has been declared guilty. It is contended that the investigative process is completely devoid of credibility.
15. Mr. Saba Mohy-ud-Din, Advocate for the complainant has strongly opposed the grant of bail on the ground that the role of Raziq Nisar petitioner has been specifically mentioned in the, F.I.R. As that of an abettor. He referred to the statements of Muhammad Arif and Muhammad Yaqoob in the police Zimni to show that the offence of abetment has been made out against the petitioner.
He relied upon the case of Wajid Ali v. Mumtaz Ali Khan and another 2000 M LD 1172 to contend that an abettor would be liable to same punishment just as the main accused including that of although not as Qisas but as Tazir.
16. Arguments have been heard and record perused.
17. The F.I.R. Has mentioned the petitioner as having abetted the occurrence. Although, the enmity between the complainant party and the accused existed for some time yet the question whether or not the occurrence was abetted by the petitioner is certainly a case of further inquiry. The statement of Muhammad Arif and Muhammad Yaqoob which were recorded 11 days after the occurrence by the police cannot be considered as conclusive evidence of abetment. In the aforementioned circumstances, find it a fit case for the grant of bail to Raziq Nisar petitioner.
18. The upshot of the above discussion is that the petition for bail of Shamraiz petitioner is dismissed whereas the petition for bail of Raziq Nisar petitioner is allowed and he is admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 (Rs. One lac only) with two sureties in the like amount to the satisfaction of the learned trial Court.