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Criminal Miscellaneous No. 2378/13 of 1986, decided on 20th September, 1986.

---S. 497--Penal Code (XLV of 1860), S. 302/149/148--Trial Court, on basis of preliminary evidence recorded in private complaint, giving his opinion that prima facie a case under S. 302/149/148, P.P.C. was made out against petitioners--Trial Court also observing Police investigation as being biased against complainant party--Petitioners, held, were not entitled to bail, in circumstances.

Sardar Muhammad Latif Khan Khosa for Petitioners.

M.B. Zaman for the Complainant.

Dil Muhammad Tarar for the State.

Date of hearing: 20th September, 1986.

This is a petition under section 497/498, Cr.P.C. by Wazir Khan and others, petitioners Nos. 1 to 5, for bail in respect of a private complaint case lodged against them under section 302/307/148/149, P.P.C. before the learned Sessions Judge, Mianwali, and in respect of which they have been summoned to face trial.

2. In respect of an incident which occurred on 12-1-1986 at 2-15 p.m., in village Rokhari two cases were registered by the two opposing parties at Police Station, City Mianwali. The first case (F.I.R. No. 10 of 1986) was recorded at the instance of Tahir Khan, complainant, against (twelve persons and the other case F.I.R. No.11 of 1986) was recorded at the instance of Akram Khan, complainant, against five persons, namely, the present five petitioners before me. According to the first case (F.I.R. No.10 of 1986), the twelve accused named therein, who were alleged to be armed with guns and rifles, had attempted to make a murderous assault on the complainant party, but whilst none was injured, pellet marks were found on the doors and walls of the house of Tahir Khan, complainant, and on Wazir Khans Woodstall and a number of empties and pellets and were recovered from the spot.

According to the second case (F.I.R. No.11 of 19e6) the five present petitioners who were ail alleged to be armed with guns, had attacked the complainant party, causing the death of Muhammad Munawar Khan S.I. and injuries to Zaffar Iqbal Khan P.W.

3. During the Police investigation, the first case (F.I.R. No.10 of 1986) was found to have been correctly instituted, Accordingly, the challan against the twelve accused named therein was filed under section 307/452/148/149, P.P.C. The second case, however, was not found to be correct qua the allegation regarding the murder of Muhammad Munawar Khan S.I., deceased. The Police Investigating Agency opined that the death of Muhammad Munawar Khan S.I., was the result of the firing by his own party men i.e. the complainant party and that since the case regarding Zafar Iqbal Khan injured P.W. was not totally free from doubt, the police decided to challan the five petitioners only under section 307/148/149, P.P.C. for causing injuries to Zaffar Iqbal P.W.

4. The complainant party of the second case (F.I.R. No. 11 of 1986), not being satisfied with the Police investigation, filed a private complaint against the present five petitioners under section 302/148/149. P.P.C. before the Sessions Judge, Mianwali. The same was marked to a Magistrate for inquiry and on the report submitted by him, the learned Sessions Judge issued bailable warrants in the names of the present five petitioners for appearance in his Court on 22--6-1986. On 20-6-1986, the present five petitioners applied for pre-arrest bail, which came up before the same Judge on 21-6-1986. Since the petitioners had not furnished their bail bonds, the learned Sessions Judge ordered that the petitioners should be taken into custody for default in not furnishing the bail bonds. Since the petitioners escaped from the Court, the learned Sessions Judge also ordered non-bailable warrants of arrest to be issued to the petitioners for their production before him on 22-6-1986.

5. The petitioners, thereafter, moved this Court (Cr.M. 1750/13 of 1986) for pre-arrest bail, which was disposed of in limine with a direction that the petitioners could move the Sessions again. The petitioners were given interim protection till 28-6-1986, subject to their furnishing security, to enable them to move the Sessions in Mianwali for pre-arrest bail by the said date. It appears that the petitioners again applied for pre-arrest bail, which petition was adjourned over a number of hearings. However, on 17-7-1986 the petitioners did not appear in Court, whereupon their petition was dismissed. Their subsequent attempt to secure pre-arrest bail (Cr.M, 2088/13 of 1986) in the High Court also met with failure, After their arrest, they then applied to the Sessions for post-arrest bail, which were refused. They have now come up for bail to this Court.

6. On behalf of the petitioners it is submitted that both the Deputy Superintendent of Police and the Superintendent of Police, Mianwali, in their investigations found that the case of the complainant qua the murder of Muhammad Munawar Knan SA., deceased, was false and fabricated and that the case relating to the fire-arm injuries to Zaffar Iqbal Khan P.W. was also not free from doubt. It is further submitted that whereas in the F.I.R. all the five petitioners have been alleged to be armed with guns, but in the dying declaration of Muhammad Munawar Khan S. I. , deceased, and the statements of the other witnesses, including that of Zaffar Iqbal Khan injured P.W., three of the five petitioners are alleged to be armed with rifles. Lastly, it is submitted that Atta Ullah Khan is aged seventy-five years and infirm.

7. I have heard the arguments of the learned counsel for the petitioners, the complainant and the State and have also perused the record. It is true that in the F.I.R. all the five petitioners are alleged to be armed with guns but in the statements of all eye-witnesses, including the dying declaration of Muhammad Munawar Khan S.I., deceased and the statement of Zaffar Iqbal Khan, injured P.W. Akhtar Khan, Tahir Khan and Hakim Ghulam Muhammad Khan, petitioners, are alleged to be armed with rifles. On the basis of the preliminary evidence recorded in the private complaint case the learned Sessions Judge has found a prima facie case made out against the present five petitioners under section 302/148/149, P.P.C. The learned Sessions Judge, whilst dismissing the petition for bail filed by the present five petitioners, has also found the police investigation to be biased against the complainant party. Without going on the record as having given any finding in the matter, I would only say for the limited purpose of this bail petition, that the petitioners are not entitled to be released on bail. Atta Ullah, petitioner, is also not aged seventy-five years, as alleged, or infirm.

8. For the foregoing reasons, there being no merit in this petition the same is dismissed.

S.G.D./726/L Petition dismissed.

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