Khalid Mehmood and another vs Muhammad Kashif Rasool, etc.

ORDER

CRIMINAL PETITION No, 330-U2013 TASSADUQ HUSSAIN JILLANI, J. --- Petitioner/ complainant seeks cancellation of bail granted to the respondents/Muhammad Kashif Rasool and Abbas vide the order dated 13.3.2013 passed by the learned Judge in Chamber of the learned Lahore High Court, Lahore in the case registered vide F.I.R. No, 262, dated 28.5.2012 under Sections 302/324/337-A(i)/337-A(ii)/337-F(iii)/337-F(v)/337- L(ii)/148/149/109, PPC at Police Station Mian Channu, District Khanewal.

2. The prosecution story briefly stated is that on the fateful day i,e. 28.5.2012 at about 1.45 p.m. respondents alongwith 15 others armed with fire-arms and blunt weapons attacked the complainant party and caused them various injuries. The role attributed to the accused was that the accused party came to the spot to take forcible possession of the 'Ahata' which was in the use of complainant party; that Ghulam Shabbir accused gave 'sota' blow to the complainant; Adnan also gave 'sota' blow to the complainant; Allah Ditta gave 'sota' blow to Shahid Javed; Aslam, gave 'sota' blow to Javed Iqbal; Asadullah gave 'sots' blow to Javed Iqbal; Abbas respondent also gave 'sota' blow to Javed Iqbal; Bilal accused also gave 'sota' blow to Javed Iqbal; Bilal and Asadullah also gave 'sota' blows to Shahid Iqbal. It was further alleged that when Muhammad Rafique attempted to rescue the victims respondent Kashif Rasool fired at him with mouser. pistol which hit the latter on the abdomen; Waseem co-accused also fired with mouser which hit Rafique on the left flank and thereafter Kashif Rasool fired at Muhammad Rafique which landed on various parts of his body. He fell down and in the fallen condition Abdur Rahim accused gave him 'sota' blows.

Waseem accused fired with mouser which hit Kashif Amin; lftikhar accused resorted to aerial firing.

With regard to the motive it was alleged in the F.I.R. that sometimes prior to the occurrence respondent Kashif Rasool had called him from his mobile and threatened him that he and his companions were coming to take forcible possession of the 'Ahata'.

3. The learned High Court granted bail to the respondents Kashif Rasool and. Abbas on the ground that "petitioner Muhammad Kashif Rasool has been assigned a role of fire-arm injury not only in the belly portion of Muhammad Rafique deceased but also back and different parts of the body.

According to the medical evidence, there are only two injuries found on the body of Muhammad Rafique deceased. One, out of such two injuries which is entry wound was assigned to Waseem Shahzad, whereas, the other one is exit wound. To connect Muhammad Kashif Rasool with the crime, if the prosecution relies upon the medical evidence that is in clear conflict of ocular version and on account of this fact that the case is of cross version, it would be appropriate that both the sides would be facilitated by granting them bail, by taking guidance from the judgment in reported case titled Muhammad Shahzad Siddigue v. The State and another (PLD 2009 SC 58).

4. Learned counsel for the petitioner contended that the learned High Court has misread the medical evidence inasmuch as there are three injuries on the person of Muhammad Rafique deceased and injury No, 1 is attributed to Waseem Shahzad whereas injury No, 2 is the one which was caused by Kashif Rasool with mouser. He further submitted that pursuant to a direction of this Court the report of the Forensic Science Laboratory has since been received with regard to the pistol recovered from Kashif Rasool and the empties recovered from the spot which is to the effect that the empties were fired from the said pistol. So far as the cross-version of the respondents- accused is concerned, learned counsel contended that it is an afterthought and was recorded by the police almost after two weeks.

5. Learned counsel for the respondents, however, defended the impugned judgment as according to him to have the cross-version recorded, the accused already had given application to the concerned police officer the very next day of the occurrence that four persons from the accused side received injuries; that they are in possession of the 'Ahata' for the last more than two decades; that as per the investigation carried out by the crimes branch respondent Kashif came to the spot later in time and he was not armed; that in the said investigation it was also found that the 'Ahata' is in possession.of the accused party.

6. Learned Additional Prosecutor General submitted that though he supports the petition but in all fairness would like to bring to the notice of this Court that a bare reading of the F.I.R. indicates that Kashif was attributed a fire-arm injury on the abdomen of Muhammad Rafique deceased whereas the injury on the abdomen of the deceased is an exit wound and there is a contradiction between the ocular account and the medical evidence. He further submitted that the investigation was not only carried out by the local Police but also by the Crimes Branch and in terms of the final report submitted under Section 173, Cr.P.C. both sides have been sent up for trial i,e. ten persons from the accused side have been challaned and nine persons from the complainant's side have been sent up for trial.

7. We have considered the submissions made and have also examined the record.

8. A reading of the F.I.R. and the medical evidence indicates that prima facie there are elements of conflict between the ocular account and the medical evidence, a proper appreciation of which has also its effect on respondents' role in the alleged, offence would be gone into by the learned Trial Court after recording the evidence. As both the sides have been sent up for trial it indicates that,the investigating agency has left the issue as to who was the aggressor to the Trial' Court. Admittedly, the statements of the prosecution witnesses recorded under Section 161, Cr.P.C. have already been distributed and the trial has commenced. Any expression of opinion at this stage is likely to prejudice the case of either side. In Muhammad Ismail v. Muhammad Rafique (PLD 1989 SC 585), the Court dismissed the application for cancellation of bail by observing as follows:-- "Notwithstanding the foregoing treatment of both the points noted for leave to appeal, learned counsel further contended that the findings of fact though tentative reached by the learned Judge in the High Court; wherein the opinion of Police Officer declaring the respondent innocent was, prima facie, relied upon (by the learned Judge in the High Court) are erroneous. He argued that notwithstanding the opinion of the Police Officer which admittedly is relevant under sub- section (2) of Section 497, Cr.P.C. the High Court should have followed its own earlier view of merits expressed in the orders dated 14.6.1988 and 9.1.1988. Prima facie, the argument of the learned counsel has considerable force but for good reasons we would not like to interfere with impugned order: One, leave was not granted on this point and it being a bail matter we would not extend the leave granting order; two, if we set aside the order of the High Court on merits this would disturb the aforestated practice; three, ordinarily the tentative opinion expressed by the. High Court in bail matters on the merits of the case, is not disturbed; four, in view of the observation we are going to make with regard to merits, the case of the petitioner/appellant would not be prejudiced during the trial."

9. In the afore-referred circumstances, by way of judicial propriety, we would not like to interfere with the discretion exercised by the learned High Court in granting bail to the respondents. The petition is dismissed.

CRIMINAL PETITION No, 386-L/2013 10.Learned counsel for the petitioner does not want to press this petition, which is accordingly dismissed.