MUHAMMAD AFZAL Versus State

ORDER

Through this application under section 497, Cr.P.C. the petitioner seeks bail after arrest in case F.I.R. No.280 dated 28-9-2004 registered under sections 3021 148/149, P.P.C. at Police Station, Kamir District, Sahiwal on the statement of Ghulam Ahmad alias Chhan for an occurrence which had taken place on 27-9-2004 at 9-00 p.m. According to the complainant when he reached the place of occurrence saw that Muhammad Arshad armed with rifle, Safdar armed with .12 bore gun, Muhammad Afzal petitioner armed with rifle, Toheed armed with .12 pistol and Munir Ahmad armed with .12 bore gun were quarrelling with Muhammad Asghar son of Muhammad Yar over the turn for irrigation of land, who wanted to irrigate the land situated in Square No.5 while Asghar stopped them while saying that it was turn of water for Square No. 13 but the accused did not agree. Muhammad Asghar along with his companions Zubair Ahmad, Ijaz Ahmad and Ghulam Ahmad repeatedly asked them for not doing so. On their hue and cry many persons of the locality attracted at the place of occurrence. The complainant and his son Muhammad Khan who were watching T.V. also went to the place of occurrence. Akram son of the complainant was going ahead of the complainant at a distance of 10 karms with a tube light in his hand while the complainant along with Muhammad Yar, Asghar and Muhammad Amir were following him when they reached Square No.2 of Killa' No.23 accused Muhammad Arshad, Safdar, Afzal, Toheed and Munir Ahmad who were hiding themselves in a Khal raised a Lalkara that Muhammad Khan should not be spared and started indiscriminate firing. Munir Ahmad started raising Lalkara that anybody coming towards the Khal would be murdered. Due to the firing of the accused Muhammad Khan son of the complainant received injuries on neck, forehead and back of the chest, who became seriously injured. The motive behind the occurrence was alleged that Muhammad Khan used to support Muhammad Yar who had a dispute over the turn of water with the accused party and it was planning of the accused to kill him, if came forward again for helping Muhammad Yar etc.

2. Learned counsel for the petitioner contends that it was night occurrence and during investigation it transpired that only Arshad had tired at the deceased while the petitioner according to the investigation was armed with hatchet and had not caused any injury to the deceased. It is also contended that in the private complaint tiled by the complainant subsequently the role allegedly ascribed to the petitioner has been changed while stating that he gave a butt blow to the deceased. According to the learned counsel contradictory statements have been made by the complainant and the witnesses, whereas neither any crime empty was recovered from the spot nor recovery of alleged weapon of offence was effected from him and his participation in the occurrence is doubtful.

3. Learned counsel for the complainant on the other hand opposes this application on the ground that the petitioner is named in the F.I.R. with a specific role. It is also contended that the offence falls within the prohibitory clause of section 497, Cr.P.C, and in the private complaint which has been filed only after 1-1/2 months the specific role has been ascribed to the petitioner.

4. I have heard the learned counsel for the parties and also perused the record. The story narrated in the F.I.R. under section 154, Cr.P.C. during investigation regarding involvement of all the accused except Arshad and petitioner Muhammad Afzal was found incorrect and the statement of the complainant that the petitioner while armed with rifle had fired at the deceased along with other co-accused was also not believed. During investigation it transpired that the petitioner was only armed with hatchet, but he had not caused any injury to the deceased. Subsequently private complaint has been filed in which the role ascribed to the petitioner in the F.I.R. has been changed and the petitioner has been alleged to have caused a butt blow on the forehead of the deceased. The contradictory stand of the complainant regarding the role ascribed to the petitioner in different statements makes out a case of the petitioner to be of further inquiry falling under subsection (2) of section 497, Cr.P.C. Even otherwise nothing is to be recovered from the petitioner and the remaining of the petitioner in jail will serve no useful purpose to the prosecution, Hence this application is accepted and the petitioner is admitted to boil subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

N.H.Q./M-996/L Bail granted.