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Criminal Miscellaneous No. 783-B of 1986, decided on 19th October, 1986.

---S. 497--Penal Code (XLV of 1860), Ss.302 & 109/34--Bail, grant of--Case investigated by four different Investigating Officers-.-All finding both accused to be innocent--Accused found to be present at two different places at time of occurrence--No recovery made from accused- Unlicensed gun recovered from co-accused--Large number of witnesses examined in defence--Police accepting version of defence witnesses- Question, whether accused actively took part in occurrence, as alleged, would call for further inquiry--Held, it could not be unequivocally said that accused were guilty of offence imputed to them--Bail granted in circumstances.

Ibrahim v. Hayat Gul 1985 S C M R 382; Imtiaz Ahmad v. The State 1986 S C M R 192 and Iqbal-ur-Rahman v. The State P L D 1974 S C 8 3 ref.

Sardar Faiz Muhammad Khan Khosa for Petitioners.

Tassadduq Hussain Jilani, A.A.-G. for the State.

Muhammad Bashir Khan for the Complainant.

This is a petition under section 497/498, Cr.P.C. by Muhammad Hashim and Sarfraz alias Bakht, petitioners for bail in respect of a case instituted against them and one other under section 302/109/34, P.P.C. at Police Station Rojhan, District Rajanpur, on 16-3-1986.

2. The brief facts of the case are that on 16-3-1986 Khuda Bakhsh complainant was present in his house alongwith his two sons, Masood-ur Rahman, deceased and Waheed-ur-Rahman P.W., when a little after Zohar prayers, Muhammad Hashim, petitioner, came to his house in order to take away Masood-ur-Rahman, deceased, to resolve the dispute between him and Hatim Ali, co-accused, which had been pending in respect of a water.pump. At about 3-00 p.m. Khuda Bakhsh, complainant. his two sons Masood-ur-Rahman, deceased, and Waheed-ur-Rahman;'' P, W. , together with Ali Nawaz P.W. and Muhammad Hashim, petitioner, proceeded to the Dera of Sardar Afzal Khan Mazari, which they reached at about 4-50 p.m. The witnesses sat down in the Dera, when Muhammad Hashim, petitioner, left the Dera with the ruse of calling Hatim All, co-accused, from his house. After half an hour, Hatim Ali, co-accused, suddenly appeared at the door of the Dera, duly armed with a .12 bore gun, and fired at Masood-ur-Rahman, deceased, which hit him on the left side of his neck, felling him from the chair to the ground, Thereafter, Hatim Ali, co-accused, ran away with his gun to the house of his cousin and brother-in-law, namely, Sarfraz alias Bakht, petitioner. From there Hatim Ali, co-accused with his gun, and Sarfraz alias Bakht, petitioner, also armed with a gun, went to the house of Hatim Ali, co-accused, where Mst. Gul Khatoon, the wife of Muhammad Hashim, petitioner, and her two brothers, namely, Naeem Akhtar Khan and Abdul Wahab P.W.7 were present. Within the presence of the witnesses, Sarfraz alias Bakht, petitioner, fired at Mst. Gul Khatoon, felling her then and there.

3. The motive for the crime was that a year before the occurrence, Masood-ur-Rahman, deceased, had obtained a water pump from Hatim Ali, co-accused, which had worked for some time, but subsequently got out of order. Hatim Ali, co-accused, demanded the return of the water pump, but Masood-ur-Rahman, deceased, refused to do so, till his SEIKO-5 wrist watch and a sum of Rs.500 were returned to him. This led to an exchange of hot words between the parties, regarding which Hatim Ali, co-accused, harboured a grudge against the deceased and for that reason Muhammad Hashim, petitioner, brought Masood-ur Rahman, deceased, and the P.Ws. to the Dera of Sardar Afzal Khan under a pre-planned scheme, where Hatim Ali, co-accused, killed Masuod-ur-Rahman, deceased, and thereafter Sarfraz alias Bakht, petitioner, murdered Mst. Gul Khatoon, in order to make the murder of Masood-ur-Rahman, deceased, a case of 'Kale Kali'.

During four investigations conducted by the police, both Muhammad Hashim and Sarfraz alias Bakht, petitioners, were found innocent. The police found that actually Hatim Ali, co-accused, had murdered Masood-ur-Rahman, deceased, at the very place where the complainant had stated he was so murdered and that in order to give the murder the complexion of 'Kala Kali', he had gone to his house and murdered his own sister-in-law, Mst. Gul Khatoon, in the presence of her two brothers. The police accordingly submitted a challan against Hatim Ali, co-accused, showing the names of the two petitioners in column No.2.

4. The learned Assistant Advocate-General, who represents the State, does not entirely agree with the new case, as set up by the police in the challan, and for the specific Durpose of this bail petition submits that Muhammad Hashim, petitioner, at least should not be released on bail, as he wag the brother of Hatim All, co-accused, and he criminally enticed Masood-ur-Rahman, deceased, to the place of occurrence, so that he could be murdered by his brother. He does not seriously oppose the grant of bail to Sarfraz alias Bakht, petitioner.

5. The learned counsel for the complainant submits that the ipse dixit of the police should not be accepted at tie stage of bail, as both the petitioners have been given specific parts, which clearly show that they are guilty of the offences imputed to them. In this connection, the learned counsel for the complainant has cited Ibrahim v. Hayat Gui 1985 S C M R 382, Imtiaz Ahmad v. The State 1986 S C M R 192 and Iqbal-ur-Rahman v. The State P L D 1974 S C 83.

6. I have heard .the arguments of the learned counsel for the petitioners, the complainant and the State and have also .perused the police record. The case was investigated by Saif Ullah Khan, S.I. , Police Station Rojhan, then by Muhammad Saeed Khan, Inspector/S. H.O. Police Station Rojhan, thereafter by Malik Habib Khan, D . S . P. District Headquarters, and finally by Muhammad Ashraf, D.S.P., Divisional Headquarters, who all found that Muhammad Hashim and Sarfraz alias Bakht, petitioners, were innocent and that actually Hatim Ali, co-accused, had murdered Masood-ur-Rahman, and then, in order tol shield himself, he went and killed his sister-in-law, Mst. Gul Khatoon I, to make out a case of 'Kala Kali. According to the police version, on the date and time of occurrence, Punal Khan and Afzal Khan were having their joint lands situated in Mauza Miranpur partitioned and its produce assessed by Ghulam Mustafa Patwari and Ayaz Ahmad Girdawar Qanungo, when a large number of persons, including Allah Bakhsh Machhi, Chuhar Chamkani and Razi Khan Balajani, were present at the Dera of the said Afzal Khan, when Masood-ur-Rahman, deceased, and Safdar Khan, brother-in-law of the deceased, happened to come there. All of a sudden, Hatim Ali, co-accused, came and fired at Masood-ur Rahman, deceased. He then went to his own house and killed Mst. Gul Khatoon, his sister-in-law and the wife of Muhammad Hashim, petitioner, in the presence of Naeem Akhtar Khan and Abdul Wahab Khan P.Ws. who were the brothers of Mst. Gul Khatoon, deceased, in order to make the murder of Masood-ur-Rahman, deceased, one of 'Kala Kalil. As regards Muhammad Hashim, petitioner, the police found that at the time of the occurrence, he was getting the Girdawari of his land prepared by Abdul Rahman Patwari in Mauza Chakkarwali, which place was 12 k.m. from the place of occurrence across the River Indus. It was not until Karam Machhi came and told Muhammad Hashim, petitioner, what Hatim Ali, co-accused, had done, that he repaired to the spot. As regards Sarfraz alias Bakht, petitioner, the police found that at the time of the occurrence, he was at the hotel of one Ghulam Akbar, one-fifty Karams away from the Dera of Sardar Afzal Khan Masari, where Ghulam Akbar, Khuda Bakhsh and Shahnawaz P.Ws. were also present. It was not until one Adat Machhi came and told Sarfraz alias Bakht, petitioner, about what Hatim, co-accused, had done, that he went to the place of occurrence. The police were not able to make any recoveries from the petitioners, though Hatim Ali, co-accused, led to the recovery of an unlicensed gun. In view of the fact that a large number of witnesses have been examined by the police in defence of the petitioners and their version has been accepted by the police, the question whether Muhammad Hashim and Sarfraz alias Bakht, petitioners, did actively take part in the occurrence, as alleged, is one which calls for further inquiry and, in this view of the matter, it cannot be unequivocally stated that the petitioners are guilty of the offences imputed to them. Without going on the record as having given any opinion in the matter, I would only say, for the limited proposes of this bail petition, that the petitioners are entitled to be released on bail.

9. For the foregoing reasons, this petition is accepted and Muhammad Hashim and Sarfraz alias Bakht, petitioners, are released on bail, subject to their furnishing security in the sum of Rupees thirty thousand (Rs.30,000) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Rajanpur.

S. A. Bail granted.

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