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Criminal Miscellaneous Nos. 2037/B, 2038/B and 2690/B of 1986, decided on 28th December, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of Petitioners behind the bars for more than one year while one of petitioners' father and other's grandfather died meanwhile‑‑Petitioners allowed bail on compassionate and humanitarian grounds.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑ Petitioners arrested immediately after occurrence and behind the bars for more than one year‑‑Bail, held, not to be withheld as punishment‑‑ Petitioners allowed bail in circumstances.

Manzoor and 4 others v. The State P L D 1972 SC 81; Muhammad Iqbal v. The State P L D 1963 (W.P.) Lah. 279 and Muhammad Sadik and others v. The State 1980 S C M R 203 ref.

Ghulam Bari Salimi assisted by Ismail Qureshi for Petitioners.

Zaheer Ali Qudusi for Petitioners.

Shabbir Akhtar, Asstt. A.‑G. for the State.

Date of hearing: 28th December, 1986.

Petitioners in these petitions (Criminal Miscellaneous Nos. 2027‑B 1986, 2038‑B‑1986 and 2620‑B‑1986) are students. All of them alongwith one Shamas Raza Khan, an absconder, are accused in the same murder case. This order will dispose of the three bail petitions.

2. The murder in which the petitioners are involved was alleged to have taken, place on 14‑12‑1985 outside the gate of M.A.O. College, Lahore. Report about the incident was lodged by means of an application addressed to the S.H.O., Police Station Krishan Nagar by Farooq Ahmad. The application was handed over to A.S.I. Muhammad Iqbal in Mayo Hospital, Lahore, who had arrived there on receiving information about the alleged incident.

3. The prosecution case is that the accused party which was armed with different types of fire‑arms opened fire as a result of which Rai Jamshed Anjum died.

The motive for the attack was that both the accused and the Complainant party belonged to different groups of students whose ideas and loyalties to their respective high commands were poles apart. Both parties were allergic to each other.

4. Amir‑ul‑Azeem and Tayyab Shaheen were armed with rifle and sten‑gun, respectively. Hafiz Tahir Aslam and Sohail Amin had carbines. Zia‑ud‑Din was carrying a revolver and Wakil Anjum shot‑gun.

Investigation continued for a long time. It changed hands off and on. At one stage it passed on to the Crimes Branch. The Crimes Branch was to examine the plea of alibi raised by the accused. The D.S.P. sought number of adjournments. At last the Crimes Branch came to the conclusion that the plea of alibi was false. This concluded the entire investigation and the challan was completed.

5. I have heard the counsel appearing in the three petitions at full length.

Learned counsel submitted that Farooq Ahmad who was author of the written application which led to the registration of the case against the petitioners disowned the contents of the application. According to the learned counsel this finished the entire prosecution case. If not so, then at least it becomes a case of further enquiry.

The second contention raised by the learned counsel was the plea of alibi. This too was argued at length and the counsel submitted that there are number of affidavits. The deponents are very highly placed persons. They are respectable citizens. There appears to be no reason to ignore these affidavits. On the basis of the affidavits the counsel wanted me to admit the petitioners to bail. A chain of decisions was cited by the learned counsel including those of the Hon'ble Supreme Court of Pakistan. I don't wish tp incorporate those. The reason will become obvious when I conclude this judgment.

In this sequence learned counsel argued that I should not take into consideration the verdict of Crimes Branch because. the opinion of the police officer is not binding on this Court.

It was next contended that the bail may rot be withheld as a punishment. In support of this learned counsel referred to Manzoor and 4 others v. The State P L D 1972 SC 81.

6. I have also heard learned counsel for father of the deceased who vehemently opposed the grant of bail. He laid great stress on the fact that all of the accused were carrying fire‑arms. They had formed 4n unlawful assembly. Their common object was not only mere rioting but to commit murders. They did succeed in that. Rai Jamshed Anjum was shot dead.

Learned counsel further submitted that a large number of cases have been registered against the petitioners, individually. Those are pending. Although they are student nevertheless they indulged in nefarious activities. They are gangsters. As such they are not entitled to bail.

My attention was invited to the case of Muhammad Iqbal v. The State P L D 1963 (W.P.) Lah. 279 in which broad principles have been led for the grant of bail in non‑bailable offences. According to the learned counsel the petitioners' case is not fit for bail.

It was further submitted that not only that the investigation is complete even the challan has been submitted and a date has been fixed for commencement of trial. After the necessary preliminaries are complied with the trial will start and if at this stage the petitioners are allowed bail the trial is likely to be hampered. Learned counsel cited the case of Muhammad Sadik and others v. The State 1980 S C M R 203.

7. The Assistant Advocate‑General also opposed the bail. In addition to the arguments advanced by the counsel which were duly adopted by him the learned Law Officer argued that if these petitioners come out they are bound to create trouble. The student class will not be safe. The parents would not be willing to send their children for education. He also laid emphasis regarding the commencement of trial and submitted that this is no stage for bail.

8. Two of the petitioners are on interim bail. Amir‑ul‑Azeem was allowed ad interim bail by me on 15‑11‑1986 on the ground that his father was lyin8 seriously ill in the hospital. The father unfortunately died, Wakil Anjum was admitted to interim bail on 10‑12‑1986 on the ground of illness of leis grandfather who too died later on.

So far as these two petitioners (Amir‑ul‑Azeem and Wakil Anjum) are concerned, I am sure by now they must have learnt some lesson and I have known as to how the law of nature works. I confirm their interim bails on compassionate and humanitarian grounds.

9. With regard to the remaining petitioners, I am not prepared to consider the plea of alibi at this stage. That shall be considered at the proper time by the trial Court. But there are few other points which go in their favour. Those are‑‑Farooq Ahmad's subsequent change in his previous stance. What is the reason for that and what prevailed with him is not for me to comment. However, the fact remains that he did so. This aspect calls for further enquiry.

The other point is that the case was registered in December 1985. Most of the petitioners were arrested immediately thereafter and now it is more than a year that they are behind the bars. The factum of delay goes in their favour.

I am not inclined to attach any importance to the fact that as the trial is likely to commence in the near future their bail applications are to be rejected on this ground. On the other hand I agree with the counsel for, the petitioners that bail is not to be withheld as a punishment.

10. I asked the Assistant Advocate‑General as to what was the correct position with regard to the other cases registered against the petitioners. He was not aware of it and he wanted time which I declined. He had enough time to look into this aspect. Moreover, if there are other cases against the petitioners those shall be dealt with in accordance of their own merits. The argument advanced on behalf of the State that the delay took place because the accused used to apply for transfer of investigation and the Crimes Branch also came into picture at the instance of the accused does not impress me. If the accused submitted frivolous and false applications the purpose of which was to delay, there was no justification for the Investigating Agency to keep the matter pending or to delay the Investigating Agency to keep the matter pending or to delay the investigation on the basis of such like applications.

11. For the foregoing reasons, I admit the rest of the petitioners, namely, Tayyab Shaheen, Hafiz, Tahir Aslam, Qazi Sohail Amin and Ziaud Din Ansari, to bail pending decision of the trial on their furnishing bond in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of Officer on Special .Duty (Judl.) of this Court.

Before concluding, I would like to observe that I explained to the counsel for the petitioners that if it is brought to my notice that the petitioners have misused the concession of bail, in any way, their bail shall stand cancelled and they shall be remanded to judicial custody.

S.G.D./A‑41/L Bail allowed.

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