MUHAMMAD SIDDIQUE Versus State
ORDER
MAZHAR IQBAL SIDHU, J.--- By terseness the prosecutional accusel is that complainant, Muneeb Mushtaq received sad tidings as to forcible possessing of his land by the petitioner and his particeps criminis mentioned in the FIR on 13.02.2015 at 10:00 p.m., whereupon he along with his phoophizad Muhammad Naveed (deceased), Nusrat Javed, Zafrullah and Aftab by boarding a sedan bearing registration No.LEC-9220 BELTA arrived at the place of occurrence at about 10:00 p.m. and found there liting searching lights and bricks were also lying there. They saw petitioner, Muhammad Siddique armed with Kalashnikov, co-accused persons Muhammad Akhtar armed with .44 bore, Rehman armed with Kalashnikov, Adnan armed with .223 bore and Faisal armed with Kalashnikov along with two unknown persons, who had also been shown equipped with fire arms. All of them, eyeing the complainant party started straight firing upon it, consequently fire shot of petitioner Muhammad Siddique hit on the head of Muhammad Naveed (deceased) whereas second fire shot made by co-accused Rehman hit Muhammad Naveed (deceased) on his neck. Then the accused persons also made firing at Muhammad Naveed who was sitting on the front seat of vehicle, succumbed there while the complainant and his companions jumped out of the car, saved themselves by lying in the nearby field whereas the accused left the spot firing.
The motive for the incident has been reported a dispute over the landed property.
2. Un to the acceptance of instant petition, it has been submitted by learned counsel for the petitioner that the petitioner is innocent; on account of property dispute has been falsely involved; partway investigation, he has been found innocent and his arrest was deferred but on the persistence of the prosecution, he was arrested, endured full physical remand but no incriminative weapon was recovered from him; after thorough investigation, the police came to the conclusion that he did not participate in the occurrence rather he allegedly hatched up a conspiracy for the commission of murder of deceased but again the police has not collected any evidence in this regard; asserted that the deceased party in fact intended to possess the piece of land of the petitioner forcibly whereas the deceased party has no nexus whatsoever with the alleged disputed property. Learned counsel has also pointed out that Munir Mushtaq, complainant has left the home land for abroad, now eye-witness Nusrat Javed, real brother of the deceased has filed a private criminal complaint wherein the accused persons have been summoned; the trial has to be commenced in the private criminal complaint case whereas the State case would remain dormant; Further adds that in view of all the facts and circumstances, prima facie, a case for the grant of bail is made out in favour of the petitioner. Learned counsel has also relied upon the bail granting order of co-accused Adnan, real son of the petitioner and by referring to the police opinion as to his innocence has asserted that the co-accused was too attributed firing at the deceased but with no specific injury, therefore, has prayed for the acceptance of instant petition.
3. Learned Additional Prosecutor General assisted by the learned counsel for the complainant has argued that the petitioner has been nominated in the FIR; he relates to the motive as well; the injury attributed to him has been found borne by the postmortem report of the deceased as injury No.1 and doctor has declared it as mortal; the matter was reported to the police without any delay; the police opinion is nothing before the statements of the eye-witnesses and the case of the petitioner does not stand on identical footings with the case of Adnan Ahmad, whose reference has been made by the learned counsel for the petitioner (Criminal Misc. No.8643-B of 2015 order dated 10.08.2015), therefore, the petitioner does not deserve the relief sought for especially when the offence falls within the prohibitory clause of section 497, Cr.P.C.
4. Learned counsel for the complainant while appearing on 23.11.2015 submitted that he intended to place on record certain documents which would be most relevant for the just decision of instant petition, therefore, through Criminal Misc. No.4070-M of 2015, placed on record certain documents. On their strength, he has argued that the complainant party is the bona fide owner in possession of the land; prior to the incident, the petitioner along with is co-accused mentioned in FIR No. 416 dated 16.10.2014 under sections 440/148/149, P.P.C. damaged the crop in which the above-mentioned case was registered; the incident did not take place in the land owned by the petitioner's party; during the investigation of case FIR No. 416/2014 mentioned above, it was transpired that the petitioner's party trespassed in the land, though investigatively the case was found false but the complainant also gave her sworn affidavit for effecting compromise with the petitioner and others. It had further been maintained that the petitioner agitated the plea of alibi in this case, the same cannot be opined at the bail stage while the eye-witnesses are tenacious to the version of FIR; fatal injury has been attributed to the petitioner and in the private complaint case, the trial proceedings have commenced, therefore, the petitioner deserves relief of bail.
5. Tripartite arguments heard. Record perused.
6. The incident took place on 13.02.2015 at 10:00 p.m. The matter was reported to the police at 11:35 p.m on the same night. The petitioner allegedly made a fire shot with his Kalashnikov, hitting at the head of Naveed (deceased). The autopsy report depicts the same as injury No.1 (entry) and injury No.2 (exit) while the doctor has declared the same as fatal along with injury No.3, leaving the illumination at the time of occurrence at the venue, though the incident took place nocturnally. The eye-witnesses have also been found tenacious to the first version, even the private complaint filed by Nusrat Javed (eye-witness) is verbatim narrative of the FIR. The accused have also been summoned in the private criminal complaint case for trial but at the same time during the investigation which was carried out confrontationally of both the parties and their respective stances thoroughly. Then the report under section 173, Cr.P.C. was prepared on 20.05.2015 resulted in non-participation of the petitioner in the commission of murder of deceased but he has been found responsible for hatching up a criminal machination for the incident but at the same time the complainant party remained stick to its version recorded under section 154, Cr.P.C. It may be contextual to reproduce the relevant paragraph of the said report. The same is as follows:-
7. The record shows that the petitioner is a proprietor of A-ONE Rice Factory situated at a short distance from the place of occurrence to the ill-fated incident. On 25.02.2013, he purchased a land measuring 06-K and 02-Sarsahi from Malik Kaleem Akbar Awan through a registered sale deed and the same was mutated in his name by Mutation No. 3369. Thereafter on 23.07.2013 again he purchased a land measuring 04-K and 8-M from Malik Nadeem Akbar Awan through registered sale deed and vide mutation No. 3486 was mutated in his name. The land purchased fall in Khasra numbers 520/2/4-16 and 521/2/2-2, 576, 577. The perusal of the record shows that behind the A-ONE rice mills owned by the petitioner, the said land is situated. It may be relevant to mention here that earlier to the incident Mst. Khalida Sardar wife of Mushtaq Ahmad had got a case registered against the petitioner and others vide FIR No.416 dated 16.10.2014 under sections 440/148/149, P.P.C. for causing mischief to the standing wheat crop and fodder crop in the land measuring 11-K falling in Khasra Nos.520 and 581. The said case was investigated and ended in its cancellation being false. The police came to the conclusion in the investigation of said case, reproduced hereinbelow:-
8. Prima facie, the petitioner is owner in possession of the alleged disputed land but at the same time civil litigation is going on, therefore, the Court constrains to opinionate.
9. Police case diaries are revelatory for deferment to the arrest of the petitioner that the petitioner did not participate in the incident, he endured physical remand but no weapon of offence has been recovered from him. Although, certain spent crime empties of Kalashnikov were taken into possession from the spot by the Investigating Officer but at the same time the prosecution has shown three persons armed with Kalashnikovs inclusive of the petitioner. It is a settled proposition postulated by ratiocinations of the Hon'ble Supreme Court of Pakistan in different cases that the police opinion may be relevant for the decision of a bail application, provided the substance upon which the police opine is tangible. In the instant case physical location/presence of the petitioner was found by telephonic call data with the handi mobile phone set of the petitioner, available on the record that he was not present at the place of occurrence at the time of occurrence. The trial has commenced in the private criminal complaint (Nusrat Javed v. Muhammad Siddique and others). In this way, the State case has to proceed dormant. The petitioner is father of two co-accused i.e. Rehman and Adnan and elder brother of Muhammad Akhtar, co-accused. Being head of the family his false involvement prima facie, cannot be ruled out. The material collected during the investigation as to non-involvement of the petitioner is cogent as well as tangible. During the investigation, offence under section 109, P.P.C. was also added. In these circumstances, now the case has become of two versions, one put forth by the complainant and the other by the investigating agency. The Court has sought guidance from the case of Ehsanullah v. The State (2012 SCMR 1137) as under:-
"----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/427/ 109/148/149---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to qatl-i-amd, mischief causing damage, abetment and rioting---Bail, grant of---Version of State and complainant---Distinction---Further inquiry----Accused was nominated in FIR but no specific injury to any person had been attributed to him and only generalized and collective allegation was levelled against him. Investigating agency had reached at definite conclusion that accused was not even present at the scene of crime at relevant time and had provided behind the scene abetment to his co-accused for commission of alleged offence----Accused had been recommended for trial only in respect of an offence under S.109, P.P.C.---Prosecution itself had two version vis-a- vis the accused, first was complainant party according to which accused was present at the spot and had resorted to firing and second of investigating agency according to which accused was not present at the spot and he was abetting his co-accused behind the scene---Such considerations render the case against accused one of further inquiry into his guilt---Bail was allowed. [pp.1139, 1140] A & C."
The Court has also been guided by the case of Muhammad Hussain v. Muhammad Anwar Ahmad Khan and another (1975 SCMR 151) infra:-
"----S. 497---Bail in non-bailable offence---Plea of alibi raised by accused and affidavit in support sworn by 20-Advocates---Plea, held, in circumstance, good enough to justify enlargement of accused on bail by High Court---Observation by High Court, while enlarging accused, of possibility of accused being falsely involved----Remark held, uncalled for---Penal Code (XLV of 1860), S.302. [p.152] A"
In the case of Muhammad Afzal v. Nazir Ahmad and others (1984 SCMR 429), the apex Court observed hereunder:-
"---Art. 185(3)---Criminal Procedure Code (V of 1898), Ss. 497 & 498---Penal Code (XLV of 1860), S. 302/34---Bail---Relevancy of opinion of investigation agency in regard to complicity of an accused person---Held, depends on, soundness of material upon which such opinion is based---Opinion of police officer based on statements of respectable persons, such as Imam of local mosque and Vice-Chairman of Union Council---Held, High Court could take into consideration such opinion in granting bail---No interference called for. [p. 430]"
It has also been observed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Siddique v. Muhammad Abbas and another (1998 SCMR 284) herein below:-
"----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Constitution of Pakistan (1973), Art. 185(3)---Bail---Entitlement of accused to be released on bail---Trial Court on basis of report of the Investigating Officer had enlarged accused on bail---High Court, however, cancelled accused's bail---Validity---Supreme Court found that both the forums below had discussed in detail merits of case which was contrary to establish norms while deciding question of bail----Court seized of jurisdiction for examining question of bail should make only tentative assessment of facts without making detailed reference to merits---Case of accused was clearly distinguishable from that of other co-accused persons who were nominated in FIR and were attributed direct role---Normally reliance could not be placed on opinion of Investigating Officer at bail stage, especially when challan had been submitted against accused person, however, its relevancy keeping in view circumstances of each case could not be completely excluded----Trial Court, therefore, only with regard to case of accused had exercised discretion on reasonable basis----Petition for leave to appeal was converted into appeal and order of High Court cancelling bail of accused was set aside---Trial Court's order granting bail to accused was restored in circumstances. [p. 286]."
9(sic.) The facts and circumstances of the case discussed above have prima facie, made out a case for further inquiry as to involvement of petitioner in the alleged incident, therefore, a case for the grant of bail is made out in his favour, thus, instant petition is accepted and the petitioner is granted bail provided his submission of bail bond in the sum of Rs. 5,00,000/- (Rupees five lac only) with one surety in the like amount to the satisfaction of the learned trial court.
10. Remarkably, it is observed that the observations made hereinabove sans prejudice.
HBT/M-26/L Bail granted.