Mian SAGHIR AHMAD Versus State

ORDER

The petitioners Mian Saghir Ahmad son of Muhammad Ibrahim and Usman Khalid son of Muhammad Khalid seek post-arrest bail in case F.I.R. No.251 of 2004 for offences under section 302/34, P.P.C., registered at Police Station Saddar Faisalabad.

2. The prosecution story as unfolded in the F.I.R. recorded on the statement of Muhammad Nawaz son of Nazar Muhammad was that he was resident of Chak No.296/RB Yasir Town, Faisalabad; on 5-3-2004 at 7-00 p.m. he along with his brother Muhammad Riaz and one Qari Muhammad Ashraf was standing near the shop of confectioner situated in Workshop Bazar, Yasir Town, when he came to know that some persons belonging to Ansar brotherhood were coming towards the house of Mian Naseer Ahmad leading by his father; they rushed towards that site; they were hardly at some distance from the house of Mian Naseer Ahmad when suddenly Mian Naseer Ahmad, Sagheer Ahmad (petitioner) and Nazeer Ahmad sons of Muhammad Ibrahim all armed with pistols and Usman Khalid (petitioner) armed with a rifle appeared from their house and while challenging the persons of Ansari Bradari started firing; the complainant shouted to Mian Naseer Ahmed to save his father as he was coming after getting the medicines; the people of Ansari Bradari ran backwards from the spot but his father could not run due to his old age; all the four accused along with Mian Naseer Ahmad started making indiscriminate firing as a result of which one shot which was made by Mian Naseer Ahmad hit on the chest of his father as a result of which he fell down and succumbed to his injuries at the spot. The accused fled away from the spot while brandishing their fire-arms and making firing. The motive was that one hour before the main occurrence there was a brawl between Mian Naseer Ahmad etc. and the persons from the Ansari Bradari in which one boy of the latter party was injured and the former party thought that his father was coming in support of the latter. Resultantly the instant F.I.R. was recorded.

3. The petitioner s application for post-arrest bail was turned down by the learned Additional Sessions Judge, Faisalabad vide his order, dated 9-7-2004 . Hence this petition.

4. I have heard Mr. Nazeer Ahmad Ghazi, the learned counsel for the petitioners, Mr. Rasheed Ahmed Khan Qaisrani, the learned counsel for the complainant, as also Malik Manzoor Ahmad, Advocate for the State and have perused the record brought by Ali Asghar, S.-I. P.S. Saddar Faisalabad.

5. Mr. Nazeer Ahmad Ghazi, the learned counsel for the petitioners argued that no specific attribution had been made to the petitioners in the F.I.R.; that they are also not connected with the motive part of the story; that no recovery has been effected from them and that their vicarious liability is to be determined at the time of trial. In support of his contentions he relied on Yaroo v. The State 2004 SCMR 864, Ghulam Qadir v. The State 2004 YLR 1548 ( Lahore ), Hozaifa and others v. The State 2002 YLR 1196 ( Lahore ) and Sabir Ali v. The State 2004 PCr.LJ 556 ( Karachi ).

6. On the other hand Mr. Rasheed Ahmad Qaisrani, the learned counsel for the complainant argued that the opinion of guilt had been recorded against the petitioners by two successive Investigating Officers; that in the last investigation which had been carried out by the S.P. (Investigation), Faisalabad the petitioners had been held guilty and the Superintendent of Police had stated that it were the petitioners who had indulged in the firing which resulted in the death of the deceased and the story that cross-firing had taken place was not correct.

7. The learned State Counsel adopted the arguments advanced by the learned counsel for the complainant.

8. I have considered the arguments of the learned counsel at length. The petitioners Nazeer Ahmad and Naseer Ahmad had applied for their pre-arrest bail in this Court vide Crl. Misc. No.3162/B of 2004 which had been disposed of by my learned brother Bashir A. Mujahid, J. as his Lordship then was, vide order, dated 27-5-2004 . In the said order pre-arrest bail had been allowed to Mian Nazeer Ahmad and Naseer Ahmad whereas the plea of the present petitioners had been turned down,. A plain look at the said order reveals that pre-arrest bail had been declined to the petitioners on merits and not simply on account of lack of mala fides. All the contentions which have been raised by the petitioners in the present petition had been urged in the said application too. It is now well-settled that if pre-arrest bail is declined on merits and not simply on account of mala fides, then post-arrest bail can also be refused. Reference in this behalf can be placed on Muhammad Nawaz v. The State 1990 ALD 650 wherein this Court had held that if pre-arrest bail had been declined on merits of the case and not merely on account of absence of mala fides, it will be against all norms of justice and propriety if the Courts were allowed to take a complete somersault on facts and release an accused person on bail by taking refuge under the sole pretext that the case was now one of post-arrest bail. Even otherwise both the petitioners have been held guilty by the Investigating Officers and contrary to the claim of the learned counsel for the petitioners recoveries of weapons of offence were also effected from them. The precedents relied upon by the learned counsel for the petitioners proceed on different facts and circumstances and do not advance the case of the petitioners for the grant of bail. There is no merit in this petition which is accordingly dismissed.

H.B.T./S-304/L Petition dismissed.