BASHIR AHMAD vs THE STATE

ORDER

' Cr1. Misc. No,1268-M of 2009 ' HASNAT AHMAD KHAN, J.--- Through this application a prayer has been made to place on record the appended documents. Allowed.

Main case ' Bashir Ahmed, the petitioner, by submitting this application, has prayed for post arrest bail in case F.I.R. No,101 of 2009, dated 6-2-2009, registered with Police Station Pindi Bhattian, District Hafizabad, in respect of offences under sections 436, 427, 354, 148 and 149, P . P. C .

2. Precisely, the prosecution story, as unfolded, in the F.I.R. Lodged on the written application of one Muhammad Akram, is that the petitioner, along with his co-accused, barged into the house of the complainant after scaling over its walls and thrashed the complainant and his family members including the females whose clothes were also torn off and their hair were pulled by the intruders.

The complainant further alleged that Ijaz Ahmed co-accused, set the Dhapper"/Thatched cottage, erected in the house, ablaze whereafter the co-accused including the petitioner allegedly set the clothes and beddings etc. On fire. The complainant further claimed that all the accused demolished a residential room and the outer gate with the help of a tractor and before leaving the place of occurrence took away valuables including gold ornaments and cash. The thatched cottage along with bedding, etc., according to the complainant, was burnt to ashes.

3. In support of this petition the learned counsel for the petitioner contends that no occurrence, as claimed by the complainant, ever took place; that the land where the alleged occurrence took place belongs to the accused party. In order to substantiate the said contention learned counsel for the petitioner has placed reliance on record the copies of Record of Right and Khasra Girdawari.

Learned counsel for the petitioner further adds that during the investigation the petitioner, who according to his National Identity Card is 63 years old, has already been found innocent.

4. Conversely, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant, has opposed the bail application vehemently by submitting that the complainant's house was set ablaze causing a huge loss to him, therefore, the petitioner who is fully involved in the said heinous crime, which attracts the provisions of prohibitory clause of section 497, Cr.P.C., is not entitled to the concession of post arrest bail. Learned counsel for the complainant while placing reliance on the copies of Record of Rights and Khasra Girdawari claims that the complainant party was, in fact, in possession of the land in dispute and that the disputed land has already been attached under section 145, Cr.P.C.

' Heard. Record perused.

6. At the first blush the crime in question appears to be of very heinous nature but on a closer scrutiny of the record, including the police file, it appears the loss caused by the fire is not of that magnitude as claimed by the complainant.. A perusal of the recovery memo. Of the burnt material reveals that no household article or clothing was burnt in the alleged occurrence rather some building material of "Dhapper"/Thatched cottage was burnt. The said memo. Further reveals that some un-burnt pieces of wooden rafters were recovered from the spot. In order to claim their respective ownership over the land where the occurrence took -place both the parties have relied upon the documents A issued by the revenue authorities. Since complicated issues are involved with regard to the ownership and possession of the parties over the disputed land, therefore, I am intentionally avoiding to return any finding in this behalf, lest it may prejudice the case of either of the parties pending before the civil as well as revenue Courts. Suffice it to observe that there is a serious dispute between the parties regarding the ownership and possession of the land in dispute.

Insofar as the offence under section 436, P.P.C., the prime and non-bailable one, is concerned, a perusal of the contents of the F.I.R. Would reveal that the main allegation has been levelled against the petitioner's son, namely Ijaz Ahmed, who according to the complainant put the "Dhapper"/Thatched cottage to torch. According to the final report submitted by the Investigating Officer, the complainant failed to establish as to whether the "Dhapper" was set ablaze by the petitioner or by the principal accused,. Namely, Ijaz Ahmed. He went on to opine that at the time of occurrence a lot of people had assembled at the place of occurrence, therefore, it could not be established that who set the "Dhapper" ablaze. In view of the said findings returned by the Investigating Officer, the petitioner's case requires further probe. After making out a case of further enquiry the petitioner has become entitled to bail as a matter of right. Reliance in this regard is placed on the cases of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul 1985 SCM R 382. Besides, the involvement of the petitioner being father of Riaz Ahmed and Ijaz Ahmed, co-accused, widening the net by the complainant cannot be ruled out. The petitioner, a fairly old man of 63 years of age, has been languishing in jail since 8-2-2009. The investigation has already been completed, therefore, no useful purpose would be served by detaining the petitioner any further.

7. Consequently, the application in hand is accepted and the petitioner is granted bail after arrest subject to his furnishing bail bonds in a sum of Rs,1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.