TANVIR vs THE STATE and others

ORDER

CH. MUHAMMAD TARIQ, J.-- Through this petition, the petitioner seeks his bail after arrest in case F.I.R. No, 231, dated 19-9-2010 for the offences under sections 302, 148, 149, P.P.C. registered with Police Station Jatli, District Rawalpindi.

2. The precise allegation against the petitioner is that on the day of occurrence, he armed with lethal weapons along with other co-accused fired at Ghulam Sarwar deceased which hit him on his left ear. Thereafter, the petitioner fired at Shamim Akhtar which hit on the left side of belly of Mst.

Shamim Akhtar. Thereafter, Ghulam Sarwar and Mst. Shamim Akhtar both succumbed to the injuries at the spot.

3. Learned counsel for the petitioner inter alia contends that the petitioner is absolutely innocent and he has not committed any offence. The petitioner was not present at the spot. During the investigation, the petitioner was ,found innocent and his name was placed in Column No,2 of the challan. Learned counsel further contends that it is settled principle of law that accused recorded in Column No,2 of the challan is not presumed as accused in the eye of law and his case squarely falls within the ambit of section 497(2) of Cr.P.C. Learned counsel for the petitioner has put his thrust more on the ground that during investigation, the petitioner remained on physical remand but no recovery could be effected from the petitioner rather he was placed in Column No,2 of the challan by the police.

4. Learned counsel for the petitioner further contends that father of Mst. Shamim Akhtar deceased has sworn an affidavit in favour of the petitioner to the effect that the petitioner is not involved in this case. He further avers that in fact, there was a dispute between Ghulam Sarwar deceased and Mashooq Ali and all other accused have been involved in this case as a consequence of wider-net.

In the circumstances, the petitioner is entitled to be released on bail.

5. Conversely, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant has vehemently opposed this bail petition and has contended that it is a broad-day occurrence. The petitioner is nominated in the F.I.R. with 'specific role. Plea of alibi taken by the petitioner could not be looked into at the bail stage. Ghulam Sarwar and Mst. Shamim Akhtar both were husband and wife. The petitioner and the complainants are residents of the same village and belong to the same bradri. It is a case of murder of three persons which is pre-planned and the attack was pre-mediated, therefore, the petitioner is not entitled to the grant of bail.

6. I have heard the arguments put forth by learned counsel for the parties and have also perused the record to the extent available on file.

7. Perusal of record highlights that it was a broad day occurrence. The F.I.R. was lodged promptly.

The petitioner was nominated with specific role. In the circumstances, the opinion of police declaring the petitioner innocent could not be considered, as ipse dixit of the police is not binding on the court. The contention of learned counsel for the petitioner that during investigation, the petitioner was declared innocent by the police is also not relevant at this stage because mentioning of name of the accused in Column No,2 while submitting challan by the police does not debar the court to evaluate material on record because each and every criminal case is to be decided on its own peculiar circumstances and facts. Similarly, plea of alibi could also not be considered at the bail stage. In this regard, I have benefited from the law laid down by the Hon'ble Supreme Court of Pakistan in cases reported as 2010 SCM R 1861 and 2004 SCM R 1610.

8. Perusal of record further highlights that the petitioner according to F.I.R. actively participated in the commission of offence and caused fire-arm injuries to Ghulam Sarwar and Mst. Shamim Akhtar C deceased.

9. The contention raised by learned counsel for the petitioner that the father of Shamim Akhtar has sworn an affidavit in favour of the petitioner about his innocence will also be looked into at the time of trial when the veracity of the affidavit will be determined after having cross-examination on the deponent. It is a case of triple murder. While granting bail, the court has to make tentative assessm ents on the basis, of material available on record. Deeper appreciation is not warranted at the time of grant of bail.

10. In the circumstances, the petitioner is not entitled to the grant of bail, hence the bail petition in hand is dismissed.