MUHAMMAD ZAFAR vs THE STATE

ORDER

' ZUBDA-TUL-HUSSAIN, J.--- Five persons were accused of murderous assault and causing injuries on the person of one Bashir Ahmed i.e. Brother of the complainant with fire-arm weapons for which F.I.R. No,717 of 2008, dated 9-11-2008, was registered under sections 324/337-H(ii), 148/149, P.P.C., at Police Station, Sadar, Arifwala, District Pakpattan Sharif. All the accused are members of the same family in that Ashiq Ali, accused, is the father of three accused Muhammad Tariq, Muhammad Zafar and Muhammad Ahmed, whereas the fifth accused, Sajjad, is stated to be the nephew of Ashiq Ali. It was alleged that Ashiq Ali had raised a "Lalkara" and instig'ted the co-accused to take the revenge of the insult caused by one Aqeel Ahmed, another nephew of the complainant.

Pursuant thereto, it is alleged, Muhammad Tariq, who was armed with a rifle, shot a fire directly on Bashir Ahmed, brother of the complainant, which hit him on his abdomen, and the second fire was shot by Muhammad Zafar, who is the petitioner in the present bail petition. This shot allegedly fired by Muhammad Zafar hit Bashir Ahmed on his waist.

2. The petitioner has applied for pre-arrest bail in support whereof the learned counsel argued that the ocular account, as given in the F.I.R., to the extent of Muhammad Zafar, petitioner, is in conflict with the one borne out by the medico-legal report. According to him, two fires were allegedly shot separately by Muhammad Tariq and the petitioner, Muhammad Zafar, and both hit the injured, one on his abdomen while the other at his waist but the MLR is to the effect that Bashir Ahmed sustained only one injury on his abdomen while the injury on the waist was the exit wound of the same fire shot which had hit him on his abdomen. The learned counsel further pointed out that during the investigation only presence of the petitioner has been shown at the spot but no overt act has been found on his part. As to the vicarious liability he maintained that it was a matter of further enquiry to be established at the time of the trial of the case.

3. The learned A.P.-G. Assisted by the learned counsel for the complainant has also relied upon the MLR to argue that there were two wounds on the person of injured Bashir Ahmed and at this stage it was not possible to hold that the one on the waist of Bashir Ahmed was the exit wound or the shot going right to his abdomen. It has been contended on behalf of the prosecution that deeper 'appreciation of evidence is not to be conducted in bail matters and the offence being appropriately covered by the prohibitory clause of section 497, Cr.P.C., the petitioner is not entitled to the extraordinary concession of pre-arrest bail in the absence of any malice or ulterior motive on the part of the complainant or the prosecution, which, according to the learned A.P.-G., is missing in this case.

4. It is of course true that ipsi dixits of police are not binding on the Courts but the proceedings taken during the investigation can at the same time be taken into consideration in conjunction with or in contradistinction of the other circumstances of the case. As is obvious from the contents of the F.I.R., both Muhammad Tariq and Muhammad Zafar are accused of giving fire-arm injuries to Bashir Ahmed. The firearm injury allegedly given by Muhammad Zafar had its seat on the waist of the victim. This injury has, however, been shown to be the exit wound in the MLR. There is nothing on record nor has it been so contended on behalf of the prosecution that the MLR is a collusively prepared document in relation to the nature of injury No,2 attributed to the petitioner, Muhammad Zafar.

5. There is no cavil with the proposition that appreciation of evidence and drawing conclusion therefrom is the exclusive function of the trial Court and the same cannot be pre-empted by the superior Courts dealing with an ancillary matter of grant of bail pending the trial but the law has never prohibited provisional or tentative assessment at bail stage. The tentative appreciation of evidence is always to be distinguished from elaborate sifting of evidence and if the plea taken by the complainant is borne out by tentative assessment of the evidence the bail may be refused. At the same time, however, the bail is to be allowed if there are grounds for further enquiry into the guilt of the accused.

6. It has also to be kept in mind that the bail matter cannot be decided in vacuum and the available material can be looked into. The Court cannot refuse to look at the result of the medico- legal examination of the victim when available on record. Reliance in this behalf can be placed on Muhammad Hanif v. Manzoor and other 1982 SCM R 153.

7. Deeper appreciation of evidence shall essentially imply going far down from the top or the surface of the record and with a relatively greater impact as against the facts prima facie borne out on the record. Where, however, the position of the injuries is clearly and categorically given in the F.I.R. As well as in the MLR and the position depicted by the both is patently either in conflict with each other or is not in consonance, the distinction or the contradiction if brought out therefrom cannot be termed as deeper appreciation of the evidence. In the present case, as already stated, the F.I.R. And the medical evidence proceed on a point which needs further clarification by means of the trial of the case. It is, therefore, obviously a case of further enquiry to establish the guilt of Muhammad Zafar or even to show that he had performed the role attributed to him in the F.I.R. The alleged vicarious liability also cannot be a reason to conclude otherwise because such liability by itself is subject to determination by further enquiry at the time of trial of the case.

8. Now, when it has come out as a case of further enquiry against the petitioner, Muhammad Zafar, he is entitled even to the pre-arrest bail on this score. That being so the bail petition is allowed and the ad interim pre-arrest to the petitioner is confirmed provided he submits fresh bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial Court/Ilaqa judicial Magistrate.