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Criminal Miscellaneous No. 3600/13 of 1972, decided on lst February 1973.

‑‑ S. 498‑Bail before arrest‑Persons accused of serious offences like that of offences under S. 302/307/149‑Not to be granted anticipatory bail.

Nisar Ahmad v. State P L D 1971 S C 174 ref.

‑‑‑ Ss. 497(5) & 498‑Bail, cancellation of‑Allegation, against accused' petitioner of instigating other accused to make attack‑Information regarding such conspiracy allegedly conveyed by prosecution witnesses to complainant‑Allegations with regard to person admittedly not present at spot ordinarily, held, raises suspicion and such allegations often device to implicate person in question but no such presumption arises where F. I. R. lodged within 15 minutes of occurrence containing allegation of conspiracy and also mentioning names of persons giving such information‑Such informants examined by police and corroborat ing complainant's version‑Contention of statements of such witnesses being not confidence inspiring, held, not tenable‑Value of statements of witnesses not to be appreciated at stage of bail‑Reasonable grounds‑existing of accused being prima facie guilty of offence punishable with death and accused also not joining investigation, interim bail, earlier granted, cancelled.

Asif Sajjad Jan for Petitioners.

Mian Qurban Sadiq Ikram for the Complainant.

Rana Maqbool Ahmad for the State.

This order will dispose of two applications for bail before arrest, namely Cr. Misc. No. 3599/8 of 1972 by Murid Mehdi Khan and Cr. Misc. No. 3600/B of 1972 by Sher Ahmad Khan and Muhammad Iqbal Khan as both of them relate to the same case. The above‑mentioned two petitioners (in C. M. No. 3600/13 of 1972) are accused, along with 10 others of offences under sections 148 and 302/307/149, P. P. C. Murid Mehdi Khan is accused of having instigated the other accused to commit the offence of murder.

The occurrence took place in village Piplan, District Mianwali. The F. I. R. eves lodged by Muhammad Afzal Khan. The facts given in it are briefly that he (I. e. Muhammad Afzal Khan), his father Ata Muhammad and some others were returning to their houses from the house of Ijaz Khan. When they reached near the front door of his (Afzal Khan's) house, the following accused persons, all of whore were armed with the fire arms turned up at the spot

(1) Muhammad Iqbal Khan (petitioner) with revolver.

(2) Sher Ahmad Khan (petitioner) with revolver.

(3) Anwar Khan with rifle.

(4) Akram Khan son of Aslam Khan with rifle.

(5) Bashir Khan son of Sufi Ghulam Akbar Khan with gun.

(6) Akram son of Krak Khan with gun.

(7) Abdul Sattar son of Payara with gun.

(8) Zulfiqar Ali with rifle.

(9) Ghulam Akbar Khan with gun.

(10) Bashir son of Payara with rifle.

(11) Akram son of Payara with gun.

(12) Abdul Sattar son of Ghulam Muhammad k ban with gun.

Anwar Khan accused raised a lalkara and fired a shot at Sher Rasul. Zulfiqar Ali accused fired a shot at Nur Muhammad, who died at the spot. Then all the accused opened fire, as, a result off which Ata Muhammad, the father of Muhammad Afzal was also hit, and fell down. Thereafter the accused left shouting lalkara and firing shots. Sher Rasul was taken on a cot to the police station but on reaching there he also died. Ata Muhammad was sent to Civil Hospital for medical aid. It is also stated in the F. I. R. that this attack was made at the instance of Murid Mehdi Khan (petitioner in C. M. No. 3599/8 of 1972); that complainant had come to know on the previous evening that Anwar Khan, Akram Khan and Bashir son of Payara accused had gone to the house of Murid Mehdi Khan who instigated them to murder Ata Muhammad and that he (Murid Mehdi Khan) had promised that he would be personally responsible for the eventualities and bear all the expenses It is stated in the F. I. R. that he was informed about this conspiracy by Muhammad Nawaz and Muhammad Amir P. Ws. who had heard it themselves.

3. The motive for the offence is stated to be that about 2/3 years prior to the occurrence there had been firing between the party of Murid Mehdi Khan on one side and the complainant party on the other as a result of which a case under section 307, P. P. C. was registered and both sides were challaned. Apart from this Anwar Khan accused had forcibly carried away the wheat crop of the tenants of the complainant who had reported the matter to the police. Ata Muhammad P. W. had helped the tenants, as a result of which Anwar Khan and Murid Mehdi Khan had threatened that they would take revenge from them.

4. While issuing notice to the State, the petitioners were granted interim bail so that their applications should not become infructuous. The applications have now come up for final hearing, on merits. All the three petitioners in the two applications are represented by the same counsel and the same counsel has appeared for the State in both the applications.

5. The learned counsel for the petitioners submitted with regard to Muhammad lqbal Khan and Sher Ahmad Khan petitioner in C. M. No. 3600/8 of 1972) that they have been falsely involved in the case. He pointed out that no specific injury has been attributed to them and that against them there is only a general allegation of having opened fire with their weapons. He submitted further that no injury on the person of the two deceased or Ata Muhammad, the injured P. W. can be said to have been caused by a revolver shot and that Slyer Ahmed and Muhammad Iqbal (petitioners in C. PA, No. 3600/8 of 1972), woo are said to have carried revolvers cannot, therefore, be said to have caused any injury to any one.

I have carefully considered the above‑mentioned contentions and am not persuaded to agree with them. The occurrence took place in broad daylight in the village abadi at 4 p. m. The F. I. R. was lodged at Police Station Piplan (which is situated at a distance of 4 furlongs from the spot), without any loss of time at 4‑30 p. m. and the petitioners are specifically named in it. They are alleged to have been carrying fire‑arms, which they used. As observed by the Supreme Court in a string of cases this is not the proper stage to consider the correctness or otherwise of the allegations. The principle laid down by the Supreme Court is that the Court should see whether the allegations made against the petitioners are such that if they were to remain unrebutted, a prima facie case would be made out against them and whether they would be liable for an offence punishable with death or transportation [Refer Nisar Ahmad v. State (PLD1971 SC174)]. On considering the present case in accordance with the above‑noted principle, I feel that there are reasonable grounds for believing that the petitioners are guilty of an offence punishable with death or transportation for life and, as such, they are not entitled to grant of bail. Moreover, the present application is one for bail before arrest, and in the same authority (P L D 1971 S C 174) the Supreme Court has not approved of the practice of granting anticipatory bail to persons accused of such serious offences. The application of Muhammad Iqbal Khan and Sher Ahmad Khan (petitioners in C. M. 3608/8 of 1972) is, therefore, rejected.

6. I now take up the application (Cr. Misc. No. 3599/8 of 1972) off Murid Mehdi Khan petitioner. As already mentioned the allegation against him is that it was he who had instigated the other accused to make the attack. Muhammad Nawaz and Muhammad Amir P. Ws. are said to have informed the complainant about this conspiracy. Ordinarily such an allegation with regard to a person who was admittedly not present at the spot, raises a suspicion and puts one on guard. More often than not, such an allegation is merely a device for implicating the person in question. The present case is, however, different from the general rung of cases, inasmuch as the F. I. R. was lodged by Muhammad Afzal within 15 minutes of the occurrence wherein he not only made the allegation of conspiracy and instigation against Murid ‑Mehdi Khan petitioner but also named the persons who had informed him about the same. These two persons, namely, Muhammad Nawaz and Muhammad Amir, have been examined by the police. The learned State Counsel has produced copies of their statements under section 161 Cr. P. C. Muhammad Nawaz has deposed that he was present when the conspiracy was hatched. Muhammad Amir is said to have heard it while sitting just outside the dera of Murid Mehdi Khan petitioner. The learned counsel for the petitioner argued that the statements of these witnesses do not inspire confidence and should be ignored. I am afraid I cannot do so because as already observed that is not the stage to appreciate the value of the statements of witnesses and to do so would be to forestall the trial. I feel that there are reason able grounds for believing that Murid Mehdi Khan is prima facie guilty of an offence punishable with death and no cogent reason has been advanced to grant him hail even before he is arrested by the police. It may also be mentioned that the learned State Counsel has submitted that the petitioners have not been joining the investigation during the period in which they were on interim bail. As a result the application of Murid Mehdi Khan petitioner is also dismissed.

7. The interim bail granted to all the three petitioners is hereby cancelled.

Application dismissed.

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