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Criminal Miscellaneous Nos. 2693‑B and 3078‑B of 1986, decided ova 13th December, 1986.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), Ss. 148, 302 & 307/149‑‑Bail, cancellation of‑‑Accused found innocent by Police after thorough enquiries at spot‑‑Complainant party, aggressors‑‑Accused acting in self‑defence resorting to firing‑‑Opinion of police regarding innocence of accused based on sound material‑‑Cancellation of bail declined in circumstances.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 302, 307 & 148/149‑‑Bail, cancellation of‑‑Accused granted bail on merits‑‑Name of accused not appearing in F.I.R.‑‑F.I.R. lodged by eye‑witnesses knowing accused but naming his brother in F.I.R.‑‑Day time occurrence‑‑Case, held, could not be of mistaken identity‑‑Bail declined to be cancelled circumstances.

Muhammad Iqbal Bhatti for Petitioners.

Muhammad Afzaal Siddiqui for Respondents Nos. 1 and 2.

Faiz‑ur‑Rehman for the State.

Criminal Miscellaneous 2693‑B of 1986 and Criminal Miscellaneous 3078‑B of 1986 arise out of one F.I.R. No. 137, dated 14‑6‑1986 Police Station Msnawan District Lahore and will, therefore, be disposed of together by this order.

2. In brief the facts of this case are that Zulfiqar Ali complainant is a Zamindar. His uncle Akbar cultivated the land of Nazir Ahmad. On 13‑6‑1986 goats of Abdur Rashid alias Baghar strayed in the maiz crops cultivated by Akbar Ali which was objected to by Nazir Ahmad who lodged a protest with Abdur Rashid alias Baghar. This resulted in exchange of abuses. Nazir Ahmad went back and informed of the occurrence to Javed Iqbal son of Akbar Ali.

At about 4 p.m. on 14‑6‑1986 Akbar Ali, Javed and Nazir again went to Abdur Rashid alias Baghar at his brick‑kiln to enquire about the quarrel. Abdur Rashid was present there armed with .12 bore gun alongwith Asghar Ali, Bashir, Muhammad Siddique, Mushtaq, Boota, Yaqub, Ayub armed with guns, Rafique and Ashfaq armed with carbines. At that time Javed Iqbal also had a gun. When Nazir Ahmad lodged a protest, all of a sudden Abdur Rashid, etc. flared up and started abusing Akbar Ali and his companions who started running. They had hardly covered some distance when Abdur Rashid alias Baghar and his companions started firing at them. Muhammad Sharif armed with Dang and Habib Ali armed with hatchet alongwith Safdar Ali and Sajjad were attracted to the spot by the fire shots. When they reached near the field of Sadiq, they took shelter behind a Banna and also raised alarm asking Abdur Rashid alias Baghar, etc., to stop firing. However, Abdur Rashid alias Baghar and his companions reached near Muhammad Sharif, etc. Asghar fired a shot which hit Muhammad Sharif. Thereafter, Mushtaq fired a shot at Akbar Ali and Rafique fired at Habib Ali who fell down. Abdur Rashid alias Baghar fired at Muhammad Sharif. In the meanwhile Javed Iqbal in order to save himself and his companions fired which hit Abdur Rashid alias Baghar who also fell down. Javed Iqbal started running. Siddique and Asghar Ali fired at him. Javed Iqbal got injured and fell down. The accused came near Muhammad Sharif and others and started reckless firing as a result of which Muhammad Sharif. Akbar and Habib died at the spot while Aziz, Safdar Ali, Sajjad and Nazir were injured. The accused gave some butt blows as well to the injured. Javed Iqbal also died at the spot. Zulfiqar Ali complainant was proceeding to the police station. He met Inspector Muhammad Rafique at B.R.B. Canal Bridge and made statement before him on the basis of which a case was registered vide F. I. R. No. 137.

On the same day another case at the instance of Faiz Ahmad complainant was registered vide F.I.R. No. 138 under sections 302/307, 148 and 149, P.P.C. regarding the murder of Abdur Rashid alias Baghar against Nazir Ahmad, Abdul Aziz, Safdar Ali, Muhammad Ashraf, Muhammad Ilyas and others. The police has filed challans in both the cases in Court for trial. In the report under section 173, Cr. P. C. , dated 21‑8‑1986 in case F.I.R. No. 137 it is stated that Muhammad Yaqub and Muhammad Ayub accused were found innocent by the police but as the eye‑witnesses insisted on their statements they were being challaned in this case. Muhammad Siddique and Muhammad Rafique accused are still absconding. In the report under section 173, Cr. P. C. in the case F.I.R. No. 138 it was recorded that Akbar Ali, Javed Iqbal went to the brick‑kiln of Abdur Rashid alias Baghar; that they started firing at Abdur Rashid alias Baghar and his brother Asghar Ali who in their self‑defence fired at Akbar Ali and others.

3. The learned Additional Sessions Judge Lahore vide order, dated 30‑8‑1986 allowed bail to Muhammad Yaqub and on 23‑9‑1986 allowed bail to Muhammad Ayub. These two accused were granted bail because the police had found them innocent during investigation. Zulfiqar Ali complainant has filed Criminal Miscellaneous No. 2693‑B for cancellation of their bail. Muhammad Mushtaq accused was allowed bail vide order dated 24‑10‑1986 mainly for the reason that he was not named in the F.I.R. Zulfiqar Ali filed Criminal Miscellaneous 3078‑B of 1986 seeking cancellation of his bail.

4. I have heard the learned counsel for the petitioner and the accused and have also minutely perused the police file. In case Diary No. 13, dated 28‑6‑1986 the Investigating Officer recorded statements of 236 persons. Some of those persons made statements on Holy Quran. All those persons stated that Yaqub and Ayub accused were not present at the spot at the time of this occurrence. The rest of those persons were prepared to make statements on Holy Book in the mosque. The case remained under investigation for many days. The investigation was verified by D.S.P. Bedar Zafar on 30‑7‑1986, who in his case diary No. 30 mentioned that he had examined 225 residents of the village some of whom had actually seen the fight between the parties. Those persons made statements that Yaqub and Ayub accused were innocent and were not present at the spot at the time of occurrence. About 40 persons had appeared to support of Zulfiqar Ali complainant. The accused offered that if Haa Muhammad Yaqub, Haji Muhammad Yousaf and Ch. Abdul Aziz make statements on oath that Muhammad Yaqub and Ayub accused are guilty they may be challaned. The complainant party was given some time to think over the matter. After some time the complainant party stated before the D.S.P. that they were not willing to accept the offer of the accused. After thorough enquiries at the spot the D..S.P. opined that Muhammad Yaqub and Muhammad Ayub accused were innocent. There is another aspect of these cases that in the report under section 173 Cr.P.C. in case pertaining to F.I.R. No. 137 the police did not state that the accused of that case were aggressor. On the other hand in the report in case F.I.R. No. 138 it was stated that the accused (complainant party of F.I.R. No. 137) were aggressors and that Abdur Rashid alias Baghar etc. had fired in self‑defence. On a perusal of the police diary I am of the view that the opinion of police regarding innocence of Yaqub and Ayub was based on sound material. As such the Criminal Miscellaneous No. 2693‑8 of 1986, is dismissed.

5. Muhammad Mushtaq accused was allowed bail on merits by the learned Additional Sessions Judge Lahore vide order, dated 21‑10‑1986. It was contended on behalf of the complainant that by mistake the name of respondent No. 1 was recorded as Ashfaq son of Abdur Rashid alias Baghar though in fact it was Mushtaq accused and not Ashfaq who had participated in the occurrence. In reply, it was stated at the bar by learned counsel for Mushtaq respondent that Ashfaq is a real brother of Mushtaq respondent No. 1 At the time of the occurrence Ashfaq was at some other place and he had evidence to support his plea of alibi. The complainant party came to know of this and as such implicated Mushtaq respondent in this case in place of his brother Ashfaq. The F.I.R. was recorded at the instance of Zulfiqar Ali who claims to be an eye‑witness of the occurrence. Ashfaq and his brother Mushtaq were known to him. It was not a case of mistaken identity. h The occurrence took place during day time. I am, therefore, not inclined to cancel bail of Mushtaq. The Criminal Miscellaneous 3078/B of 1986 is also dismissed, because the case against Mushtaq respondent is that of further enquiry.

6. Any observation on facts will have no bearing on merits during the trial.

S.A. /2‑1/L Cancellation of bail refused.

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