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Criminal Miscellaneous No. 178-B of 1983, decided on 9th March 1983.

--Ss. 497 & 498-Penal Code (XLV of 186u), S. 302/34-Bail-Two senior police officers who investigated case expressing doubt about participation of all the accused in occurrence and about genuine ness of prosecution story-Two cross-versions given and both parties having been challaned-Other party on bail-Case of accused one which required further inquiry to determine aggressor and actual participants-Bail granted.

--Ss. 497 & 498-Penal Code (XLV of 1860), S. 302/34-Opinion of investigating officer although inadmissible in evidence yet his finding/opinion if supported by material on record, held, deserved sufficient weight at bail stage.

Muhammad Bashir Khan for Petitioners,

Moinuddin Chaudhry for the State.

Nisar Saeed for the Complainant.

Two counter-cases were registered at Police Station Chichawatni, concerning the same occurrence which took place in Chak No. 13/l I-L about 8 miles away from the Police Station at about 11/12.30 noon on Ist June, 1982. The first case was reported by Muhammad son of Abdul Aziz vide F.I.R. No. 268, dated 1st June, 1982 under section 302/307 read with 34, P.P.C., while the other case was registered at the instance of Mst. Zahri wife of Manzoor petitioner vide F. I. R. No. .:335, dated 22nd September, 1982 under the direction of this Court issued in writ petition No. 995 of 1982, under sections 307, 452, 148 and 1.49, P.P.C.

2. According to the version given in F.I.R. No. 268, dated lst August, 1982, petitioners Nos. 3 and 4 had been given a portion of Ahata by Abdul Aziz (deceased) for temporary living. Few days earlier he got that Ahata vacated but on the night preceding the day of the occurrence the peti tioners at the instance of their other co-accused re-occupied it. On the following morning, it is alleged, that Abdul Aziz and his son Muhammad Arsbad objected to the re-occupation of Ahata by petitioner No. 3 and started throwing out their house-hold effects, whereupon peti tioners Nos. 3 and 4 left. Little later they returned in the company of their co-accused namely, Javed Iqbal and Muhammad Arshad petitioners Nos. 1 and 2. At that time all of them were armed with Dangs. They opened attack on Abdul Aziz who, as a result of blows inflicted on his head, fell down. It is alleged that Muhammad Arshad petitioner who also had a pistol started firing with it. Mst. Hajra, aunt of the complainant was hit in her leg by their firing. Meanwhile, Muhammad Sharif, a partyman of the complainant came there armed with a *12 bore gun belonging to one Ghaffar Ahmad. He also fired certain shots in the air. The petitioners then disappeared from the scene. Thereafter both the injured namely, Abdul Aziz and Mst. Hajra were removed to the hospital. In the way, Abdul Aziz succumbed to the injuries. The report was made to the police by Muhammad Arshad.

3. The other version as per F. I. R. No. 357, dated 22nd September, 1982 lodged by Mst. Zohra is that an area of 5 Marlas out of 20 Marlas of the disputed lhata, according to an earlier compromise effected between the parties was to be vacated by them but suspecting that the other party was not sincere to follow the terms of compromise, they refused to vacate the Ihata within the stipulated period of one week. On the day of occurrence, about 11.00 a. m. Mst. Zohra, her husband Manaoor, petitioner and his brother Shera petitioner were sitting in their house, when Abdul Aziz (deceased) armed with lathi alongwith Muhammad Sharif, Ashiq, Hashmat, Rafiq and Pervaiz armed with firearms and Laddoo armed with hatchet trespassed into their house, and they started the ope ration of taking possession of the lhata forcibly, by throwing their belong ings of the house. They cried for help and many persons of the village collected there. The trespassers started firing. Maqsood and Anwar the relatives of petitioner Nos. 1 and 2 and Mst. Hajra's relative of Abdul Aziz deceased who were also present in the crowd were injured with their firing. The villagers started pelting stones from outside the Ihata, as a result where of, Abdul Aziz got injured. The police in collaboration with other party, removed their belongings and also refused to register case according to their version.

4. In the murder case wherein the petitioners are named as accused two persons are injured having three injuries in all. Abdul Aziz deceased suffered two injuries, one of them proved fatal and the other is an abrasion while Mst. Hajra suffered only one simple injury on her leg caused by fire-arm. As against this, on the petitioner's side two persona namely, Anwar and Maqsood were injured having total number of six injuries. Anwar received two simple injuries one with firearm and the other with blunt weapon, whereas Maqsood suffered four injuries including one grievous injury" with fire-arm involving fracture of his arm.

5. It may be pointed out that- three investigations were conducted in a line by three different police officers, namely. S. I. Abdul Ghafoor, Umar Farooq Police Inspector, and Mr. Wasim Kausar, Assistant Super intendent of Police. The last mentioned two investigating officers have expressed doubts about the participation of all the four petitione in the occurrence because the deceased had received only in all two injuries. The A. S. P. has found that the injuries suffered by the deceased were not the result of stick blows, rather he was hit by the stones pelted by the public and the petitioners, when the complainant party was trying to take forcibly possession of the disputed Ahata. He also found that with the firing of Muhammad Sharif, members of the complainant party, the aforesaid three persons were injured.

6. It is admitted before me that both the cross-cases are being challaned and the complainant party has been granted bail by the Sessions Judge.

7. I have heard the learned counsel for the petitioners as well as for the State assisted by the learned counsel for the complainant and also peruses the record.

8. From the above narration it appears that although it was allege that all the four petitioners had caused injuries with sticks to the deceased yet only two injuries with blunt weapons were found present on the dead body of Abdul Aziz of which one proved fatal and other was only a abrasion. The two senior police officers, namely, Umar Farooq, Inspector and Mr. Wasim Kausar, Assistant Superintendent of Police, expressed doubt about the participation of all the petitioners in the occurrence and also about the genuineness of the prosecution story. The last mentioned Investigating Officer had gone to the length of saying that petitioners Nos. 3 and 4 were in physical possession of the disputed Ihata at the relevant time 'and the other party (complainant party) having collected outside tried to take forcible possession of the lhata from Manzoor petitioner, etc. The counter-version in a way appears to have been believed by the Investigating Officer.

It is true that the opinion of an Investigating Officer is inadmissible in evidence but at the same time it is well settled by now that findings] opinion of an Investigating officer supported by material on record e deserves sufficient weight at bail stage. Again there are cross-versions and both are being challaned. The other party is on bail. So the case of C the petitioners is definitely the one which requires further inquiry, to determine the aggressor and the actual participants.

9. For the above discussion I allow this petition. The petitioners b released subject to their furnishing bond in the sum of Rs. 20,000 (Rupee twenty thousand only) each with two sureties in the like amount each to the satisfaction of Assistant Commissioner/Duty Magistrate, Chichawatni.

H. Y. H. Bail granted.

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