Find a Lawyer

Criminal Miscellaneous No. 405/B of 1986, decided on 8th March, 1986.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑‑Both accused named in F.I.R. and attributed a shot each on head of deceased‑‑Bail granted by Additional Sessions Judge, cancelled in circumstances.

M.A. Salim for Petitioner.

Sardar Muhammad Khurshid for the State.

Q.M. Salim for Respondents Nos. 1 to 3.

Date of hearing: 8th March, 1986.

This is a petition under section 497(5), Cr.P.C. by Muhammad Rashid, petitioner, for the cancellation of bail granted to Muhammad Khalid, Ghareeb Alam and Wazir Beg, respondents Nos. 1 to 3, by an Additional Sessions Judge of Sheikhupura on 18‑12‑1985 and 29‑1‑1986.

2. The prosecution case in brief is that there was a dispute over two Kanals of land between Mst. Riaz Begum widow of Rashid Beg, a brother of Wazir Beg, accused‑respondent, on the one side and Muhammad Rashid, complainant, on the other regarding which a civil suit was pending in the Civil Court. Wazir Beg, accused‑respondent, had asked Abbas, deceased, brother of Muhammad Rashid, complainant, to give up possession of two Kanals of land, but he refused. On the night between 16/17‑11‑1985. Muhammad Rashid, complainant, alongwith his brother Muhammad Ashaq P.W. were asleep in their cattle Haveli. Abbas alias Boota, deceased, brother of Muhammad Rashid, complainant, was asleep on a cot, outside his Dhara. At mid‑night Muhammad Rashid complainant, woke up on some noise. He Saw in the light of the electric bulb that was burning that Gharib Alam, accused‑respondent, armed with .12 bore gun, Muhammad Khalid, accused‑respondent, also armed with .12 bore gun, were standing on the head side of the cot of Muhammad Abbas, deceased. Wazir Beg, accused‑respondent, was standing on the roof of the Dhara and he raised a Lalkara urging his companions to fire, upon which Gharib Alam, respondent, fired with his gun, hitting Abbas alias Boots, deceased, on his head and, thereafter Muhammad Khalid, respondent, also fired at the head of Boota, deceased, Muhammad Rashid, complainant, and Ashiq P.Ws. raised alarm, upon which Muhammad Aslam and Abdul Aziz P.Ws. came over there. Muhammad Khalid and Gharib Alam, respondents, also then climbed over the roof of the Dhara and threatened the P.Ws. that if anyone chased them, they would be fired at and then they made good their escape. Muhammad Abbas alias Boota, deceased, died at the spot.

3. On behalf of the petitioner it is submitted that Rana Naseem, Inspector, who was in charge of the investigation, was notorious person, as in twenty‑five murders which were committed with his jurisdiction, in almost the majority of the cases the accused were declared as innocent. It is submitted that none of the accused were able to produce witnesses in support of their alibi, but all the three accused were declared innocent. It is lastly submitted that Muhammad Abbas, deceased, having been shot at from a very close distance, it was obvious that the accused were standing close by the Charpai of the deceased and that after the shot was fired the inmates must have woken up and seen the accused by the light of the electric bulb, which was burning, and which has also been shown in the site plan prepared by the police.

4. On behalf of the respondents it is submitted that one petition has been filed by the petitioner for the setting aside of two separate orders allowing bail to the respondents. Whereas two separate petitions should have been filed, it is further submitted that in three separate investigations which were conducted by the Sub‑Inspector, the Inspector and the Deputy Superintendent of Police, all the three respondents were found to be innocent. It is next urged that the post‑mortem examination report only shows one fire‑arm wound of entry, whereas according to the F.I.R., Muhammad Khalid and Gharib Shah, respondents, had fired two separate shots hitting the deceased on the head. It is further contended that Wazir Beg, respondent, being aged sixty‑eight years, was the last person who could have been expected to join in such an adventure or could have been expected to scale the roof of the Dhara just for the purpose of uttering a Lalkara. Lastly, it is contended that the F.I.R. was lodged after a delay of almost nine hours.

4‑A. The learned counsel for the State supports the submissions made by the learned counsel for the respondents.

5. I have given my anxious consideration to this case. There is only one fire‑arm wound of entry on the right side of the head of Muhammad Abbas, deceased just in front of the right ear, which appears to have caused an exit wound on the top of the skull. The fire‑arm entry wound is 6 c. m. x 6 c. m. x cranial cavity deep. From the dimension of the entry wound, it is apparent that the deceased was shot at from a distance of about two yards. This ex facie leads to the inference that the assailant or assailants were standing on the ground next to the Charpai of the deceased. Even assuming that there was one gun shot, the noise would have awoken the inmates of the house and they would have been able to see the assailants, as it is clearly stated in the F.I.R. that a bulb was burning next to the Dhara, which is borne out from point No. 6 shown in the site plan. I would not, at the moment, like to draw any inference whether the fire‑arm wound of entry is the result of one gun shot or two, because that matter I would leave to the trial Judge to decide after recording evidence. The learned counsel for the State admits that the police was 'not able to record any evidence in proof of the alibi of the respondents. The submission of the learned counsel for the petitioner that where two or more persons duly armed come at night to assassinate another, common intention should be inferred, is not without significance. In the F.I.R. Muhammad Khalid and Gharib Alam, respondents, are attributed to have fired at and injured Muhammad Abbas, deceased. Without going on the record as having given any finding, I would only say, for the limited purpose of this petition, that Muhammad Khalid and Gharib Alam, respondents were not entitled to be released on bail.

6. For the foregoing reasons, this petition is partly accepted and the bail granted to Muhammad Khalid and Gharib Alam, respondents, by the learned Additional Sessions Judge of Sheikhupura on 29‑1‑1986, is hereby cancelled. This petition qua Wazir Beg, respondent No.3 is hereby dismissed.

S.G.D. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.