QAISER ABBAS Versus STATE

ORDER

Qaiser Abbas has filed this petition under section 497(5), Cr.P.C. for cancellation of pre-arrest bail allowed to respondents Nos.2 and 3 Khadim Hussain and Mushtaq Hussain sons of Ghulam Hussain by the learned Additional Sessions Judge, Khanewal vide his judgment, dated 11-3-1993 in case F.I.R. No.24/93, dated 26-1-1993 registered under section 324/148/149, P.P.C. at Police Station Kacha Khuh, District Khanewal at the behest of Qaiser Abbas-petitioner.

2. According to the F.LR. lodged by the petitioner on 26-1-1993 at about 12 noon, marriage ceremony of Safdar Hussain with Mst. Kaneez Fatima was going on in his house. The petitioner alongwith others took out the dowry articles in the courtyard when all of a sudden from the roof of the house of Bashir Hussain accused, respondents Nos.2 and 3 armed with .12 bore guns and their other five co-accused also armed with .12 bore guns resorted to firing upon the petitioner and others. Respondent No.2 Khadim Hussain aimed his gun on Asad Abbas, hitting him in his abdomen, right and left legs, consequent to which he fell down, whereupon respondent No.3 also opened fire hitting him at left leg, inner side of thigh and the testicles. Their co-accused Safdar Hussain also fired which hit Anser Iqbal on his back. Kifayat Hussain, co accused also fired at Anser Iqbal and Asad Abbas, who fell down. Thereafter all the accused persons including respondents Nos.2 and 3 resorted to indiscriminate firing, further hitting Asad Abbas and Anser Iqbal on different parts of their body. The occurrence was also witnessed by Qamar Raza and Tabarak Hussain.

The motive behind the occurrence is that vide F.I.R. No.189/92 a case under section 302/34, P.P.C. was registered against the petitioner's party for the alleged murder of one Khadim Abbas and Murid Abbas on 11-10-1992. To avenge the same they resorted to the present occurrence. Khadim Hussain respondent No.2 is the complainant in the said F.I.R.

3. The learned counsel for the petitioner contended that the learned lower Court has grossly erred in not adverting to the rule laid down by the superior Courts of the country for grant of pre-arrest bail which are mala fides and ulterior motives. It was argued that these were never alleged and nor were found by the learned Additional Sessions Judge while confirming the bail of the respondents. It was contended that respondents Nos.2 and 3 have been named in the F.I.R., specific roles of having fired at Asad Abbas at the first instance and thereafter jointly firing at Asad Abbas and Anser lqbal while they were lying on the ground, alongwith other to-accused, have been assigned to them. It was argued that this aspect has not been properly appreciated by the learned Additional Sessions Judge and moreso when the allegations levelled against the respondents were corroborate, by the medical evidence.

4. In this case notice was issued to the State and both the parties were represented. On 24-5-1993 a joint request was made by all the parties to summon Abdul Rehman, D.S.P. who lastly investigated this case to appear in this case. Abdul Rehman, D.S.P. has appeared today. He states that he has thoroughly investigated this case and according to his finding both the respondents namely Khadim Hussain and Mushtaq Hussain had not participated in this occurrence, as Khadim Hussain respondent was present in his Bank where he is employed at the alleged time of occurrence and similarly Mushtaq Hussain respondent has also taken up a plea of alibi which was verified as true by the D.S.P.

5. In view of this statement of the D.S.P., the learned counsel for the petitioner did not press much for the acceptance of this petition or for cancellation of the bail granted to the respondents.

6. The learned counsel appearing on behalf of the State also could not controvert the statement of the D.S.P.

7. After having heard both the sides, I have also gone through the material placed on the record. The finding of the Gazetted Officer is that both the respondents Nos.2 and 3 are innocent in the case having been found as not participated in this occurrence. Although, the ipse dixit of the police is not on the Court, it being not a legal evidence but certainly it does bring the case under the ambit of subsection (2) of section 497, Cr.P.C. being a case of further enquiry as both the parties had depended upon the investigation by this, Officer who has supported the plea of the respondents.

8. Resultantly, I find no force in this petition so the same is accordingly dismissed.

N.H.Q./Q-29/L Petition dismissed.