Muhammad Hanif son of Muhammad Sharif petitioner seeks his post arrest bail in case FIR No. 83/2004 dated 19.2.2004 registered at Police Station Manga Mandi, Lahore, for offences under Sections 337-A(i), 337- A(ii), 337-F(i), 337-H(ii), 379, 506, 148/149 PPC.
2. The prosecution case as unfolded in the FIR registered at the instance of Muhammad Mansha son of Muhammad Ishaque, was that on the day of occurrence he alongwith Khushi Muhammad son of Barkat Ali, a resident of Tehsil Chaubara District Layyah had gone out for an errand; about 1:30 p.m. when they were returning to the village in a Cart (Thela) and had reached Rangeelpur, Muhammad Sharif alias Shafi empty handed, Muhammad Hanif petitioner armed with 222 bore rifle, Rasheed Ahmad and Muhammad Mansha armed with mousers also boarded the cart; when the cart crossed Rangeelpur and had traveled about two furlongs Muhammad Anwar who was armed with a carbine stopped the cart by placing a bicycle in front of the cart; Muhammad Hanif the petitioner forcibly made him to dismount from the cart by holding ,him from his neck; Muhammad Sharif alias Shafi raised a lalkara and exhorted Muhammad Mansha co-accused to kill him and not allow him to escape; Muhammad Hanif petitioner started firing with his rifle and hit him with the BUTT of his rifle on his head as a result of which blood started oozing out and he fell on the ground; Rasheed Ahmad and Mansha kept on hitting him with the BUTTs of their respective weapons and also kept on firing in the air; that four/five other unknown persons who were also armed with firearms, etc. kept on belabouring him; his shalwar was removed and was beaten up with a hunter and a wire; an amount of Rs. 5500/-, National Identity Card, telephone diary, wrist watch and some important documents were taken away; the noise raised by him attracted witnesses who with great difficulty rescued him. The motive according to the FIR was that there was a dispute between the complainant and the accused party regarding land and litigation was pending. It was for this grudge that the accused party had launched the attack.
3. The petitioner was arrested on 19.2.2004 and is in custody eversince. His application for post arrest bail was turned doWn by the learned Addl. Sessions Judge, Lahore vide his order dated 2.4.2004. Hence the instant petition.
4. Pir S.A. Rashid, the learned counsel in support of petitioner's plea for bail has argued that the offences charged with do not attract the prohibitory clause of Sec. 497(1) Cr.P.C.; that there was a delay of six hours in lodging the FIR which has not been explained by the prosecution; that during the course of investigation two of the co-accused, namely, Muhammad Sharif and Muhammad Mansha had been declared innocent, therefore, the prosecution case has been rendered doubtful; that the injury attributed to the petitioner on the head of the complainant falls under Sec. 337-A (ii)
PPC which entails punishment of five years and as such does not attract the prohibitory clause of Sec. 497(1) Cr.P.C; that the petitioner is in custody for the last 3(1/2) months and the trial has yet not commenced. He has relied on Muhammad Ismail and others versus The State, (2000 P.Cr.L.J. 477 (Lahore) in support of his arguments.
5. On the other hand Sheikh Asher Waheed, the learned counsel for the complainant has vehemently opposed the grant of bail to the petitioner. He submitted that it was a promptly lodged FIR; that the accused persons had duly been nominated with specific roles; that it was a day time occurrence and there is no possibility of substitution, that the prosecution witnesses have fully supported its case. He forcefully argued that keeping in view the callous and cruel conduct of the petitioner and his co-accused which is spelt out from the FIR the petitioner is not entitled to the concession of bail notwithstanding the fact that the offences charged with do not attract the prohibitory clause of Sec. 497, Cr.P.C. He has placed reliance on Zafar lqbal versus The State, 2002 YLR 232 (Lahore), wherein it was held that an accused person would not be entitled to the concession of bail where specific injuries on various parts of the body of the prosecution witnesses had been attributed and the eye-witnesses including the injured victim had fully implicated him. It was held that the fact that the offences did not fall within the prohibitory clause of Sec. 497(1), Cr.P.C. would not necessarily entitle the petitioner to the grant of bail. He also relied on Ghulam Qadir and another versus The State, 2002 YLR 1858(2) [Lahore] wherein this Court in similar circumstance refused grant of bail to the petitioner although the offences charged with did not attract the prohibitory clause of Sec. 497 (1), Cr.P.C.
6. Mian Shahid Rasool, the learned counsel for the State has adopted the arguments of the learned counsel for the complainant.
7. It has been observed that out of five accused persons the petitioner is the only one who could be apprehended so far. The rest of the co-accused are still at large and have since been declared proclaimed offenders. The allegation leveled in the FIR that the complainant was stripped naked and was given thrashing by the accused persons makes a very painful reading and this fact has been noted by the Investigating' Officer during the course of investigation. The injury attributed to the petitioner on the head of the victim with the BUTT of the petitioner's rifle exposed the bone and attracted Section 337-A (ii) PPC entailing a punishment of five years imprisonment which was a non-bailable offence. The victim was administered merciless beating by the assailants including the petitioner and the doctor who conducted the medical examination noted as many as 16 injuries on his person. The rifle which had allegedly been used by the petitioner during the transaction had also been recovered from him. According to Abdul Razzaq ASI/Investigating Officer who has brought the record, the challan has since been submitted in the Court and the trial is likely to commence shortly.
8. In view of the conduct of the petitioner as noted hereinabove he, in my opinion is not entitled to the discretionary relief of bail. There being no merit in this petition the same stands dismissed.
However, before parting with this order I would like to observe that the observations made herein above are tentative in nature and shall not prejudice the trial of the petitioner in any manner.