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Criminal Miscellaneous No. 1391 of 1970, decided on 18^th March 1970.

S. 497‑Bail‑Murder case‑Accused neither assigned any specific role nor any overt act attributed to him‑Accused a student of B. A. awaiting final result‑Held : a fit case for bail‑Ad interim bail granted and records called for.

Farooq Ahmad v. Ghulam Shabbir and others 1968 P Cr. L J 447; Muhammad Amir and S others v. The State 1969 P Cr. L J 132(2) and Mir Afsar and others v. The State 1968 P Cr. L J 436 rel.

Wasim Sajjad for Petitioners.

Rafiq Butt for the State.

Raja Muhammad Anwar for the Complainant.

Date of hearing : 18th March 1970.

This order may be read in continuation of my order dated the 10th of March 1970.

2. Mr. Rafiq Butt learned counsel appearing for the State stated that Ch. Mukhtar Ahmad, D. S. P. met an accident and Sub‑Inspector, investigating the case was away to Mianwali, in connection with the investigation of this case, therefore, it was not possible for them to appear in this Court today.

3. Raja Muhammad Anwar, learned counsel appearing fit the complainant stated than Muhammad Bashir, A. S. I., Police Station Isakhel had brought the police file and the matter could be decided in the absence of the police officers of the Crimes Branch, West Pakistan, Lahore. He stoutly argued that Ata Muhammad accused was not entitled to bail, because the local police investigating the case, had filed the police report under section 173, Cr. P. C., and had placed him in column 1 of the police challan and the mere fact that the investigating officers of the Crimes Branch had stated that Ata Muhammad was innocent, was not enough, to admit him to bail as that police officer had not placed him in column 2 of the police challan. It was further urged that this Court at this stage could not examine the evidence of alibi and as such it was urged that the interim bail granted to Ata Muhammad should be recalled. It was stated that there was enough evidence on the record to show that Shifa Muhammad, another accused, was present at the scene of the crime and was armed with a gun and had stationed himself at such a place so, that he would not permit anyone, to come to the rescue of the deceased. Therefore, it was suggested that he is not entitled to bail. He cited Ghulam Nabi v. The State (1968 P Cr. L J 186) where their Lordships of the Supreme Court did not interfere with the order of the High Court when it refused to examine the evidence of alibi in a bail application. This citation has no bearing on the facts of the present case, as Ata Muhammad was allowed bail on the ground that during the investigation of the case one of the investigating, agency found him innocent and he was allowed interim bail in view of the dictum of their Lordships of the Supreme Court in Cit. Abdul Malik v. The State (P L D 1968 S C 349). He cited another unreported judgment of mine in Criminal Misc. No. 6327 of 1969, wherein I took the view that though one of the police officers had pronounced the accused innocent, but as ultimately the police decided to challan the accused, therefore, he was not entitled to bail. On the basis of this judgment it was urged that as the challan has been put in the Court, Ata Muhammad was not entitled to bail. This was my consistent view but the same has been set aside in the recent pronouncement of the Supreme Court in Rehmatullah alias Rchman v. The State and another (Criminal Appeal No. 137 of 1969) where their Lordships observed

"This seems to us a case in which the guilt of the appellant certainly requires further investigation and inquiry to entitle him to bail under section 497 (2) of the Criminal Procedure Code. The opinions of the investigating officers, certainly do not con stitute legal evidence, but being adverse to the prosecution, they put one on an inquiry as to the varacity of the prosecution case. The question of the vicarious liability of the appellant in regard to the commonness of his intention with his co‑accused for firing at Bakhsh and its further extension to the result that followed, namely, the death of Mst. Fatima, will have to be determined at the trial to see, if this guilt under section'302/34, P. P. C., is established as alleged by the prosecution . . . . . . it cannot be said, in the circumstances, of the present case, that the learned Sessions Judge bad acted arbitrarily in allowing bail to the appellant and as such the reversal of his order by the learned Single Judge appears to us to be unjustified. This appeal has consequently to be accepted. The appellant shall continue to remain on bail as already ordered by this Court."

Before finally deciding the case of Ata Muhammad, I would like to see the final report of the Crimes Branch in this case.

4. Mr. Wasim Sajjad, learned counsel appearing for the petitioner, canvassed bail on behalf of Shifa Muhammad on the ground that no overt act has been attributed to him except that he was standing at a distance of 150 yards armed with a gun at the time of the alleged occurrence and as such he is entitled to bail. In support of his argument he cited Farooq Ahmad v. Ghulam Shabbir and others (1968 P Cr. L J 447) where their Lordships delivered as follow:-

"The consideration which prevailed with the learned Judge in the High Court in granting bail was that no overt act in causing the death of Sawan deceased was attributed to either of the respondents and that one of them was studying in M. A. Class and the other was an employee of the District Board.

It cannot be said that the learned Judge has acted in breach of the provision of section 498, Cr: P. C:, or exercised of his discretion in granting bail to the respondents in violation of any principle of law to call for interference by this Court."

Yet in another judgment in Mir Afsar and others v. The State (1968 P Cr. L J 436) their Lordships observed :‑

"The High Court has on a further revision granted bail to two of the co‑accused of the petitioners one of whom had fired shots in the air and the other had only abused a brother of the complainant. Bail to the petitioners has, however, been refused because they were found to have fired at three of the P. Ws. and caused serious injuries to them.

It is said that the discrimination made by the High Court among the petitioners and their co‑accused has resulted in failure of justice. The contention is plainly misconceived. The case of the petitioners and the other two was clearly distinguishable and the High Court has exercised its discretion under the sections 426 and 498, Cr. P. C., quite properly in refusing bail to the petitioners pending the disposal of their revision petition."

He also cited Muhammad Amir and S others v. The State (1969 P Cr. L J 132(2)) where my learned brother Sardar Muhammad Iqbal J. observed:‑

"The three witnesses mentioned above do not assign any role to Ghulam Muhammad, Lal son of Allah Ditta and Lal son of Ghulam Muhammad. They even do not say that these accused raised a lalkara or instigated the others accused to kill. Fateh Muhammad deceased. The bail is to be refused, as held in Abdul Malik v. The State P L D 1968 S C 349, where reasonable grounds exist tending to connect the accused ‑with the crime. It was further held that no dictum or judgment of the Supreme Court creates any hurdle in matters of bail."

5. In the case in hand; prima facie it appears' that Shifa Muhammad petitioner has not been assigned any specific role nor any overt act has been attributed to him. Furthermore, he is a student of B. A. and is awaiting his final result. Following the judgment cited above, I am of the view that it is a fit case for bail. Therefore, I admit Shifa Muhammad to ad interim bail provided he furnishes security in the sum of Rs. twenty thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, Isakhel.

6. Office to put up this petition on the 10th of April 1970. The D. S. P., and the Sub‑Inspector of Crimes Branch, West Pakistan, Lahore will appear or. that date along with the police file of this case. By this interval, it is expected that the Crimes Branch would complete its investigation. A copy of this order may also be transmitted to the D. I.‑G. Crimes Branch, West Pakistan, Lahore for compliance.

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