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Criminal Miscellaneous No. 320.7‑B of 1985, decided on. 3rd February, 1986.

----‑S. 497‑‑Penal Code (XLV of 1860). S.302‑‑Bail, grant of‑‑No ocular testimony regarding fatal firing et deceased and prosecution mainly relying on testimony of two prosecution witnesses appearing before police after unexplained delay of 25 days‑‑Such witnesses not claiming to have witnessed actual firing at deceased but only seen carrying dead body‑‑Petitions allowed bail, in circumstances.

Arbab Ali v. Khamis and others 1986 S C M R 195 ref.

Mian Muhammad Jamil Akhtar for Petitioners.

Raja Muhammad Anwar for the Complainant.

Sh. Abdul Jabbar for the State.

Date of hearing: 3rd February, 1986.

Abdul Majid, Rehmat Ullah, Razzaq, Khurshid and Muhammad Ashraf petitioners have moved this petition for bail. During investigation of case F.I.R. No.90, dated 18‑3‑1985 under section 148/3071302/149/109; P.P.C., Police Station Sadar Sargodha, they were found involved in the murder of Nazir deceased. This case was registered at the instance of Khurshid petitioner against Muhammad Sharif and eleven others.

The occurrence regarding the murder of Nazir took place on 18th March 1985. On the same day another case was registered earlier against ten persons, including the petitioners, vide F.I.R. No.89 at the same police station in respect of the murder of Ahmad. This Ahmad was father of Allah Rakha who was named as an accused in F.I.R. No.90 of 1985. During the investigation of case F.I.R. No.90 dated 18‑3‑1985 the local police and the D.S.P. arrived at the conclusion that the accused armed named in the F.I.R. (Sharif etc). were innocent and Nazir was murdered by the complainant party (petitioners) to, set up a counter case.

3. The learned counsel for the petitioners contends that Muhammad Sharif etc. are the real culprits but they were not arrested by the police and one Abdus Salam had filed a complaint against them and they have been summoned by the Court. He submits that Mst. Hajra the real sister of Nazir deceased, appeared as a witness in the complaint case and supported the version that her brother Nazir was killed by the firing of Sharif etc. He further submits that Rehmat Ullah and Rana Rafiq who named the petitioners as real culprits, appeared before the police about a month after the occurrence therefore, their statements are not of much consequence.

Learned counsel for the complainant, on the other hand, contends that the petitioners have been found involved in the murder of Nazir by the local Police as well as by an officer of the rank of D.S.P. and they have been challaned. It is submitted that the finding of the Police officers has the support of two eye‑witnesses, namely, Rehmat Ullah and Rana Rafiq, and their statements connect the petitioners with the commission of crime, therefore, no ground for bail is made out. Reliance is placed on Arbab Ali v. Khamis and others 1986 S C M R 195. The learned State Counsel has also opposed the prayer for bail.

4. I have gone through the relevant material and given my careful consideration to the' submissions made by the learned counsel for the parties. The only material which the investigating agency could collect against the petitioners consists of the statements of Rehmat Ullah Rana Rafiq. It is admitted that Rana Rafiq is the father of Talib, or; of the accused named in F.I.R. No.90, referred to above. Both the P.Ws. stated that on 18th March, 1985 at about 7 p.m. the petitioner and Taj Muhammad absconder were sitting on cots at the Dera of Abdul Razzaq petitioner. Nazir deceased who was standing near them, started walking towards the school. Tai Muhammad absconder and Muhammad Ashraf petitioner who was armed with a .12 bore gun, followed hip while the others (Abdur Razzaq etc.) kept sitting on cots as before short while after, they heard three or four fire‑reports and saw the Rehmat Ullah, Abdul Majid and Muhammad Ashraf were carrying the dead body of Nazir deceased. They brought the dead body to the Dera and put it on a cot. Taj Muhammad (absconder) told his companion, that by causing the death of Nazir deceased they have come at par with the opposite party against whom a case for the murder of Nazi; would be got registered. Even these P.Ws. do not claim to have seen, any body firing at the deceased. They appeared before the police or 12‑4‑1985, i.e. about twenty‑five days after the occurrence. The, prosecution has no explanation for their late appearance Prima facie, the contention of the learned counsel for the petitioners regarding their statements, has sufficient force. Keeping in view all the fact and circumstances of the case, I feel inclined .to the view that a case for the enlargement of the petitioners is made out. I, therefore, admit them to bail in the sum of Rs.20,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner, Sargodha.

S.G.D. Bail allowed

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