PLJ 2010 Cr.C. (Lahore) 300
Present: Ijaz Ahmad Chaudhry, J.
IBRAR HUSSAIN--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 9150-B of 2009,
decided on 19.8.2009.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss.
302, 34, 148, 149 & 109--Bail, grant of--Further inquiry--Petitioner was
nominated in FIR--"Lalkara"--Petitioner was
riding the motorcycle the pillion rider of which was co-accused--Petitioner
raised lalkara and co-accused with his klasknikove made fire deceased on his head and
chest--According to the post-mortem report, the deceased sustained three
injuries--During the investigation, it has been found that the petitioner was
present in the neighbouring village in the mosque and
was doing electricity wiring--Plea of alibi--Twenty six persons of local
visiting had sworn their affidivaits--Though opinion
of police is not binding upon the Courts yet it can be considered for grant of
bail to an accused--During investigation the petitioner was not found present
at the place of occurrence and same is based upon the evidence collected during
investigation--Petitioner had succeeded in making out a case for further
inquiry--Bail admitted.
[Pp. 302 &
303] A, B & C
2008 SCMR 182 & 2009 P.Cr.L.J. 370 rel.
Ch. M. Ayub, Advocate for
Petitioner.
Sahibzada M. A. Amin Mian, APG for State.
Ms. Najma Parveen,
Advocate for Complainant.
Date of hearing: 19.8.2009.
Judgment
Through this petition, Ibrar Hussain/petitioner seeks post-arrest bail in case FIR No.
231/2008, dated 30.8.2008, registered under Sections
302/34/148/149/109 PPC, registered with Police Station Kakrali,
District Gujrat.
2. The complainant
Zafar Iqbal lodged the FIR
contending therein that on raising upon lalkara by
the present petitioner, Usman Zafar
armed with kalashnikove fired at Abdul Rauf Tariq which hit on his head
who fell down. Thereafter Ibrar fired at Abdul Rauf with his 30-bore pistol which hit on his right arm (Dola).
3. It is contended
by learned counsel for the petitioner that the petitioner is innocent and has
been involved in this case due to mala fide of the
complainant. Adds that the petitioner was present in the
mosque and conducting electricity work in the mosque at the time of occurrence.
Further contends that the present petitioner has been declared innocent by the
police during the investigation on the plea of alibi which has been supported
by as many as twenty-six persons of the vicinity who have sworn their
affidavits in support of version of the petitioner that he was doing electric
work in the mosque at the time when the occurrence had taken place and prays
that by accepting this petition, the petitioner may be granted bail.
4. The learned
A.P.G. assisted by learned counsel for the complainant has vehemently opposed
the prayer for grant of bail to the petitioner on the ground that the
petitioner is nominated in the promptly lodged FIR with a specific role for
making fire on right arm (Dola) of Abdul Rauf Tariq/deceased. Further adds
that previously FIR No. 376, dated 20.12.2009, under Section 216 PPC was
registered against the petitioner, who is a criminal bent of mind and he also
remained an absconder and suchlike person does deserve for concession of bail.
5. I have heard
learned counsel for the parties as well as the learned Additional Prosecutor
General and perused the record. It has been noted that the petitioner was
nominated in the FIR with the allegation that he was riding the motorcycle the
pillion rider of which was Usman Ghazanfar.
The petitioner raised lalkara and Usman
Ghazanfar with his kalashnikove
made fire on Abdul Rauf Tariq
hitting on his head and chest; while the petitioner; thereafter, with his
pistol 30 bore fired hitting on the upper arm (Dola)
of Abdul Rauf Tariq/deceased.
According to the post mortem report the deceased sustained three injuries.
Injury No. 1 is on the right side of head, which is an entry wound. Similarly,
Injury No. 2 is also an entry wound on the right side of his chest while Injury
No. 3, which is attributed to the present petitioner, is on the right upper arm
without any exit. However, Injuries No. 1 and 2 had exitted
on the other side. The doctor has given general opinion that all the injuries
on the person of the deceased were sufficient to cause death in an ordinary
course of nature. Injuries No. 1 and 2, which have been specifically attributed
to Usman Ghazanfar
co-accused. Even otherwise, during the investigation it has been found that the
petitioner was present in the neighbouring village in
the mosque and was doing electricity wiring. In support of this plea of alibi
twenty-six persons of the local vicinity have sworn their affidavits and also
have appeared before the Investigating Officer. Though opinion of the police is
not binding upon the Courts yet it can be considered for grant of bail to an
accused. During the police investigation the petitioner was not found present
at the place of occurrence and the same is based upon the evidence collected
during the investigation. Learned counsel for the petitioner has placed
reliance on the case reported as Qadir Bakhsh Vs. Allah Wasayo and
others (2008 SCMR 182) wherein on the basis of plea of alibi taken by the
petitioner, the Division Bench of Hon'ble Supreme
Court was of the considered opinion that the discretion in the matter of grant
of bail in favour of respondents, exercised by the
High Court, did not suffer from any legal infirmity or arbitrariness. The
learned counsel has further relied upon the case reported as Muhammad Jabbar Vs. Shah Daraz Khan and
another (2009 P.Cr.L.J. 370) and the plea taken by
the petitioner Muhammad Jabbar of alibi, being
supported by the affidavits of the witnesses the Peshawar High Court had
allowed him bail. The relevant portion is reproduced as under:--
"6. Perusal of the record reveals that the case of
the petitioner falls within the ambit of further inquiry entitling him to the
concession of bail. The petitioner had from the very initial stage taken the
plea of alibi, which was thoroughly investigated by the Investigating Officer
who had found him innocent and thus, released him under Section 169 Cr.P.C. Though such release of the petitioner was subsequently
set aside by this Court in the quashment petition but
he was not debarred from moving a fresh application under Section 497 Cr.P.C. the statements of Muhammad Raheem
alias Raheema recorded under Sections 161 and 164, Cr.P.C. available at page 36 of the record brings the case
of the petitioner within the purview of further inquiry. Furthermore, the plea
of alibi raised by the accused and duly investigated by the Investigating
Agency cannot be brushed aside outrightly, while
considering the prayer of bail of the petitioner. Besides, placing the
petitioner in Column No. 2 of the challan is another
circumstance, which can be taken into consideration for release of the accused
on bail. This is also a cardinal principle of law that even a lightest doubt,
if exists in prosecution story, the benefit of the same will got in favour of the petitioner".
6. In view of
above discussion and case law referred by the learned counsel, made above, the
petitioner has succeeded in making out a case for further inquiry and,
therefore, this petition is allowed and he is admitted to post-arrest bail
subject to his furnishing bail bond in the sum of Rs.
100,000/- with two sureties in the like amount to the satisfaction of learned
trial Court/Duty Magistrate concerned.
(A.S.) Bail admitted.
