MUHAMMAD SARWAR Versus STATE
ORDER
Muhammad Sarwar, petitioner was arrested on the 2nd of October, 1994, in pursuance of a case registered against him vide F.I.R. No. 482/1994 dated 3-9-1994, alleging the commission of offences under sections 302, 324/34, 109 of the P.P.C at P.S. Shahdara, Lahore, regarding an occurrence which took place on the 2nd of September, 1994 at 8-00 p.m. in the area commonly known as Abadi Chembian Wala Khu which is about 2-1/2 k.m. from Police Station Shahdara, Lahore.
2. The F.I.R. was lodged on the 3rd of September, 1994 at 1-10 a.m. at P.S. Shahdara on the basis of the statement lodged by Bar Ali who is a paternal nephew of Muhammad Ishaque deceased whose death occurred on the 3rd of September, 1994 while he was admitted in Hospital as a result of two fire-arm injuries both on his left flank.
3. As per the F.I.R.; both the fire-arm injuries were attributed to co accused Rasheed alias Sheeda although, according to the first information report, the said Rasheed alias Sheeda fired just once and did not repeat the firing. Muhammad Sarwar, petitioner is not even named in the F.I.R. However, the petitioner was arrested subsequently because a supplementary statement of Babar Ali, complainant was recorded on 3-9-1994, and in the said supplementary statement, according to the complainant Babar Ali, Muhammad Sarwar petitioner was armed with a mouser with which he fired two shots at the deceased on account of which death occurred.
4. It may not be out of place to mention here that the complainant Babar All who is a young man of about 18 or 20 years of age begins by saying that now Ire-collect that as a matter of fact, four entirely different persons including Muhammad Sarwar petitioner were the real assailants and that three persons named in the F.I.R. made by him earlier were not the real assailants at all. Thus, by way of substitution an entirely new set of accused persons was introduced in the supplementary statement which was recorded on the basis of an undated application moved by Babar Ali, complainant and is actually a verbatim repetition of the said application. Normally speaking, substitution is a rare phenomenon, however, in the instant case, there seems to be a whole-scale substitution. I am not expressing an opinion in this matter lest it prejudices the case of the prosecution.
5. In the F.I.R., the motive for this unfortunate occurrence is stated to be an illicit liaison between one Mst. Majhi and Rasheed alias Sheeda which was objectionable to the deceased. It is pertinent that as per the first information report, Muhammad Sarwar petitioner had no motive. However, in the supplementary statement, even the motive has been substituted and entirely a new motive has been set up and even in this new motive of animosity between "Gujjars" on the one hand and "Changgers" on the other hand, prima facie, Muhammad Sarwar, petitioner does not seem to be involved. I am again refraining from expressing any opinion, lest it causes any prejudice to the case of the prosecution. Mr. R.A. Awan, learned counsel for the petitioner contends that reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not exist and there may be grounds for further inquiry into the guilt of the petitioner within the meaning of subsection (2) of section 497 of the Cr.P.C. which would entitle the petitioner to the grant of bail. The learned counsel for the petitioner in this context, places reliance upon the cases of "Waris Muhammad v. Haji Ahmed Yar" and another (1976 SCMR 182) and "Mansoor Ahmad Bhatti v. The State" (1976 SCMR 366).
6. The learned counsel appearing on behalf of the State submits that the first information report was lodged promptly although by a "puzzled" person who mentioned the wrong names and the wrong persons but subsequently made up the loss.
7. Mr. M. Akram Qureshi, learned counsel for the complainant, submits that there was a previous enmity between the parties and there is no reason for false implication. He further submits that since the accused person belonged to Gujranwala and the occurrence took place at Shahdara there is a possibility that the names were not known to the complainant. However the learned counsel for the complainant submits that reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years exist because of the following circumstances:---
(i) There are two eye-witnesses of the occurrence who both support the subsequent version given in the supplementary statement.
(ii) There is an extra-judicial confession by the petitioner before Muhammad Ashiq and Muhammad Tariq.
(iii) The identification parade was carried out on 3-10-1994 at Police Station Shahdara, Lahore.
(iv) Two crime empties have been recovered from the spot and that the opinion of the Fire-Arm Expert is still awaited.
(v) Co-accused Bashir alias Kaloo has been pardoned under section 337 of Cr.P.C and has turned an approver.
In this context, learned counsel for the complainant relies upon the case of "Naseebullah v. The State" (1991 SCMR 2450).
8. The abovementioned case does not help the complainant's case very much because in the abovementioned case; their Lordships of the Supreme Court were pleased to direct the trial Court where the trial was taking place to conclude the trial expeditiously. In the present case, the trial has not yet commenced.
9. The extra-judicial- confession was recorded on 7-10-1994, i.e. more than one month after the alleged occurrence and is a joint confession, the evidentiary value of which shall be determined by the trial Court. The identification parade was admittedly conducted at the police station where the petitioner was not identified by any one except the same Babar Ali, complainant. Co-accused Bashir alias Kaloo has declined to accept pardon which was offered to him.
10. The case against the petitioner may at best be a case of further inquiry within the meaning of subsection (2) of section 497 of the Cr. P. C.
11. Resultantly, the petitioner is granted bail provided he furnishes his bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C/City/Duty Magistrate, Lahore,
N.H.Q./M-2047/L Bail granted.