Maj. (Retd.) ANJUM SHAFIQUE vs THE STATE and anothers

ORDER

' MAZHAR IQBAL SIDHU, J.---Petitioner Maj (Retd.) Anjum Shafique has sought for post-arrest bail in a case registered vide FIR No, 470 dated 17-12-2011 under sections 109/149/148/324/302, P.P.C. Read with offence under section 7 of the Anti-Terrorism Act, 1997 lodged on the complaint of Muhammad Afzal at Police Station Balochni, District Faisalabad.

2. The prosecution case sententiously is that on 17-12-2011 at Noon time, the complainant along with his brother, Shahid Anwar came along with sugarcane at Hunza Sugar Mills situated in Chak No,66 R. B, District Faisalabad, where 150/200 farmers were already present in the state of perplexity, on being inquired, the complainant and his brother got the knowledge that 40% cut on sugarcane crop has been levied by the mills authorities, facing this situation, 10/20 persons were chosen to descent upon the issue with the mills authorities. Consequently, the said persons went inside the mills premises. At that time, some hot words were exchanged amongst the farmers and the G. M.

(petitioner). After a short while, the petitioner along with security guards, co-accused Baba Jugni, Qamar Abbas, Azhar Pehlwan, all armed with repeaters/shot guns along with some others came.

Who had also held firearms, where the petitioner allegedly yelled a lalkara that proprietor of the mills has ordered that whosoever makes a protest be done to death, whereupon, Baba Jugni made first fire shot with his repeater/shot gun, which hit on the chest of Shahid Anwar deceased, brother of the complainant, who fell to the ground dead. Second fire shot was made by Qamar Abbas and followed by security guard Azhar Pehalwan. Both fire shots hit Asif on his left thigh, who also fell to the ground. Security guards continued firing for about an hour. On account of the same, road was blocked and sense of fear and insecurity spread over there. The farmers present there, took shelters in nearby standing crops.

3. Learned counsel for the petitioner submits that the petitioner has been falsely involved on the grounds that he was holding responsible position in the mills and as per the prosecution's own case, the petitioner tried to get the issue resolved occurred amongst the sugarcane growers and the proprietors of the mills. It has further been submitted that the petitioner did not cause any injury to anybody and during the investigation, it has been opined that in the first episode of the alleged incident, the petitioner was present but in the second episode in which the deceased lost the life and Asif sustained injuries, he was not present and his name has been placed in Column No,2 of the report prepared under section 173, Cr.P.C. On 9-1-2011 implying that his prosecution has not been recommended. During the course of investigation, offence under section 109, P.P.C. And offence under section 7 of the Anti-Terrorism Act, 1997 have been deleted and that in all circs, the petitioner is entitled for bail.

4. Learned DPP has opposed the bail petition after going through the record and submitted that the petitioner is nominated in the F.I.R.; he acted as harbinger by breaking the ice through yelling a lalkara and then firing was made resulted in death of one person and the other received injuries. It has further been maintained that all the eyewitnesses in their statements recorded under section 161, Cr.P.C. Have specifically involved the petitioner and he being holding a responsible position in the administration of the mills' matters, in this way, his lalkara has equally been found effective as ordered and then the firing started. It has lastly been submitted that police opinion is not binding upon the court, therefore, his bail petition may be dismissed.

5. Arguments hearkened. Record perused.

6. The petitioner indubitably is nominated in the F.I.R. And he strove to calm down the situation occurred at the spot in the first episode but in the second episode/ part of the occurrence, the petitioner has been shown to have yelled a lalkara but he has not been shown armed and he has not caused any injury to anybody. Thorough investigative probe, has resolved in non-presence of the petitioner at the spot in the second episode opined him innocent and accordingly his name has been placed in Column No, 2 of the report prepared under section 173, Cr.P.C. Read with 25.56/57 of the Police Rules, 1934 denoting his non-recommendation for prosecution. Of course, police opinion is not binding upon the Court but at the same time, it on account of being adverse to the prosecution can be considered for the disposal of bail. Offences under section 109, P.P.C. And section 7 of the Anti-Terrorism Act, 1997 have been deleted.

7. From the prosecution's own case as well as outcome of the investigation accumulatively constitute a case of further inquiry as I envisaged in subsection (2) of section 497, Cr.P.C. Entitling the B petitioner for the relief sought.

8. In view of this, the instant petition is allowed and the petitioner is admitted to bail provided his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.