MUHAMMAD MANSHA Versus State

ORDER

SH. ABDUR RASHID, J.--- Muhammad Mansha petitioner, through this petition seeks post-arrest bail in case F.I.R. No.514, dated 27-7-2003 under sections 302/324/148/149, P.P.C. registered at Police Station Sandha, Lahore on the report of, Muhammad Akram complainant.

2. According to the prosecution allegations stipulated in the F.I.R. on 27-7-2003 at about 6-00 p.m. Muhammad Javaid brother of Muhammad Akram complainant was present at the shop of his nephew Muhammad Amjad when Mansha petitioner along with Muhammad Ashraf alias Achha and Labha co-accused all armed with .222 rifles and Malik Piya co-accused armed with mouser along with an unknown culprit also armed with mouser came over there. Malik Piya co-accused called out Lalkara that Muhammad Javaid be taught a lesson for his refusal to, give up the business of cable in the area upon which Ashraf co-accused fired a shot hitting Javaid on his left thigh. The petitioner also fired hitting Muhammad Javaid on his left thigh. Labha co-accused fired a shot hitting Muhammad Javaid also on his left thigh who being drenched in blood fell in front of the shop. Thereafter, all the accused resorted to indiscriminate firing One One fire shot fired by Malik Piya co-accused hit Khurram P.W. a passer-by in his belly and the fire shot of the unknown culprit had hit Mohsin P.W. on his right thigh. Thereafter the petitioner along with his co-accused made good their escape in a vehicle. The occurrence was witnessed by Tufail Ahmad and Muhammad Akram P.Ws. besides the complainant. The motive for the occurrence alleged in the F.I.R. is that. Ashraf and Muhammad Javaid deceased both brothers of the complainant used to run business of cable in the area and Muhammad Ashraf alias Achha etc. accused wanted to take over their business and had been threatening them that if they did not give up their cable business they would be killed and on account of the said grouse this occurrence had been committed. Muhammad Javaid was removed to Mayo Hospital in injured condition where he subsequently succumbed to the injuries.

3. It is argued on behalf of the petitioner that the injury on the Person of Muhammad Javaid deceased alleged to have been caused by the petitioner does not correspond with the post-mortem report that Khurram injured P.W. a passer-by who allegedly received a fire shot in his belly allegedly made by Malik Piya co-accused had appeared before the Magistrate and got recorded his statement under section 164, Cr.P.C. in which he controverted the prosecution story set up in the F.I.R. and stated that the petitioner along with Labha and Piya co-accused were innocent; that the second injured Mohsin P.W. who allegedly was injured by unknown culprit had also got recorded his statement under section 164, Cr.P.C. in which he also controverted the prosecution story and stated that only Muhammad Ashraf alias Achha accused was alone present at the scene of occurrence and other co-accused i.e. the petitioner, Labha and Piya were not present there; that Mohsin injured P.W. had appeared before this Court and had confirmed having made the said statement under section 164, Cr.P.C. and thereafter on the directions of this Court he had joined the Investigating Officer Malik Azmat Bari D.S.P. in the investigation and consequently the petitioner had been found to be innocent by the said Investigating Officer, that the injuries allegedly sustained by Muhammad Javaid deceased are in conflict with the ocular version and that as many as 10 injuries which had been given in the post-mortem report did not correspond with the initial medico-legal report made by the Medical Officer on examination of the P.W. and that these facts make a case of the petitioner a matter of further inquiry.

4. Learned counsel for the complainant vehemently opposed the contentions of the learned counsel for the petitioner and has argued that the petitioner had remained an absconder; that the trial against him has already commenced and is going to be concluded and it will not be appropriate to admit the petitioner to bail as it will prejudice the prosecution case; that the petitioner side had won-over the injured P.Ws. and got recorded their statements under section 164, Cr.P.C. themselves and the petitioner as such cannot take benefit of his own mischief. It has also been argued that the complainant and the other P.Ws. fully implicated the petitioner in the occurrence and that he being armed with fire-arm had participated in the same as a result of which Javaid deceased was killed and two P.Ws. were injured and thus, a prima facie case is made out against the petitioner. It has also been argued that the petitioner had earlier filed bail petitions bearing Criminal Miscellaneous No.1777/B of 2004 and Criminal Miscellaneous No.3873/B of 2004 which were dismissed on 29-3-2004 and 21-6-2004 and no fresh ground has accrued in favour of the petitioner to admit him to bail.

5. The occurrence took place on 27-7-2003 and Muhammad Mansha petitioner was ultimately arrested on 8-10-2003. No doubt the petitioner had remained an absconder after registration of the case. The relevant question would be that whether on account of mere absconsion when the facts of the prosecution case otherwise entitle an accused to the grant of bail, should the, right of bail be refused to him. The principle of refusing bail to the absconder is not strictly applicable in each and every case. The bail cannot be refused to an accused merely on the score of absconsion if the facts of the prosecution case otherwise make him entitled to the grant of bail and the same principle has been upheld in Abdul Rauf v. The State PLD 1996 Kar. 372 and Nazir Ahmad v. The State PLD 1996 Kar. 490.

6. Admittedly the petitioner along with his co-accused had earlier moved bail petitions bearing Criminal Miscellaneous No. 1777/B of 2004 and Criminal Miscellaneous No.3873/B of 2004 which were withdrawn as having not been pressed. It has been held in Muhammad Riaz v. The State 2002 SCMR 184 that withdrawal of bail application simpliciter would not mean that it was dealt with on merits nor it can be asserted that certain grounds were raised but were repelled or had not found favour with the learned Judges as the case may be. Therefore, the withdrawal of the earlier bail applications of the petitioner will not mean that they were decided on merit. It is only when earlier bail application was decided on merits, in such case while deciding the subsequent bail application the grounds which were not urged in earlier bail application although the same were available would not constitute a fresh ground justifying filing of another bail application. Therefore, the arguments of the learned counsel for the complainant that the petitioner's bail applications having been withdrawn no fresh ground is available to justify the filing of the present bail application by the petitioner is of no substance.

7. No doubt the trial of this case is in progress. The learned counsel for the petitioner has produced copy of a judgment of the Honourable Supreme Court passed in Cr.P.S.L.A. No.60 of 2004 in which Syed Ehtesham Qadir Shah, learned counsel who is now appearing as a counsel for the complainant in this case had moved a petition for bail in a case in which the trial against the petitioner/accused was in progress and he was granted bail by the Honourable Supreme Court which fact shows that if an accused on merit is entitled to the concession of bail then the factum of trial being in progress would not constitute legal bar to the grant of bail.

8. Admittedly Khurram and Mohsin, two passers-by were injured in the occurrence. They had allegedly received fire shot of Malik Piya and unknown co-accused. Khurram and Mohsin P.Ws. got recorded their statements under section 164, Cr.P.C. certified copies of which have been placed on the record. Khurram P.W. in his said statement stated that on 27-7-2003 he was going towards his shop situated in Sandha. Malik Ashraf accused alias Achha was going ahead of him. On the way Muhammad Javaid (deceased), Muhammad Akram and Motoo were standing. Muhammad Javaid (deceased) was carrying mouser in his hand and he fired at Malik Ashraf accused which incidentally had hit this P.W. in his belly and he fell down. Thereafter Akram and Motoo also started firing and the said fire shots had hit Javaid deceased who fell down on the ground. He went on to state that Achha accused had not fired at the place of occurrence and he was all alone and that Malik Piya, Labha and Mansha petitioner were not present at the scene of occurrence. Similarly Mohsin Ijaz injured P.W. stated that on 27-7-2003 he was coming towards his house. Malik Ashraf alias Achha was going ahead of him when all of a sudden Javaid deceased and his brothers started firing at Achha co-accused and their fire shots had hit this P.W. in his left thigh. He further stated that regarding the incident the present case was registered in which Malik Ashraf alias Achha and his brother Mansha, Labha and Piya had been cited as accused and that he was injured at the scene of occurrence and he did not see the present petitioner Labha and Piya co-accused at the scene of occurrence and that they are innocent. He further stated that Malik Ashraf co-accused had not fired at the deceased. This Khurram P.W. during hearing of this bail petition had appeared before this Court and owned his statement recorded by the Magistrate under section 164, Cr.P.C. A copy of his said 'statement was delivered to Malik Azmat Bari, D.S.P./Investigating Officer for his finding regarding the occurrence and he verified the said statement which Khurram P.W. owned before this Court and he found the present petitioner to be innocent.

9. Khurram P.W. has appeared before the trial Court and stated that on 27-7-2003 he was present in a video shop which is situated at Malik Taj Road and was playing video game. He heard the noise of firing upon which he came out of the shop and received a fire shot in his belly and he fell down and expressed his ignorance that whose fire shot had hit him. He further admitted that he had appeared before this Court in connection with the bail petition of the present petitioner and denied having owned his statement under section 164, Cr.P.C. before this Court and also disowned his said statement recorded by the Magistrate but its contents had been confronted to him according to which the petitioner had no role in the occurrence. This P.W. is thus, shifting his position. First he made the statement under section 164, Cr.P.C. before the Magistrate, he appeared before this Court and owned the said statement and then he was joined in the investigation by Malik Azmat Bari, D.S.P. Investigation and he owned his said statement before him and consequently the petitioner was found to be innocent. At the trial he is changing his version. The prosecution is not going to produce Mohsin Ijaz second injured P.W. who also had got recorded his statement under section 164, Cr.P.C. and had exonerated the petitioner as a P.W. Therefore, it is obvious that the injured P.Ws. whose presence at the scene of occurrence stands established in view of these facts are not supporting the prosecution case as well as the petitioner's presence at the scene of occurrence and his having participated in the same. These facts make out the case of the petitioner a. matter of further inquiry.

10. In this view of the matter, the petitioner is allowed bail subject to his furnishing security in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

11. The observations made in this order about the facts of the prosecution case will not prejudice the proceedings before the learned trial Court.

H.B.T./M-1368/L ??????????????????????????????????????????????????????????????????????????????????????????? Bail granted.