NASIM HASAN SHAH, J.-This petition for special leave to appeal is directed against the judgment dated 18-9-1978 of the Lahore High Court passed in Criminal Miscellaneous No. 3513-B of 1978 refusing bail before arrest to the petitioner Malik Muhammad Akram, who, besides others, stands accused for the offence under sections 148/302/307/363/366/109 and 149, P. P. C.
The facts necessary for the decision of this petition, briefly stated, are as follows Two F. I. Rs. Were lodged in connection with the same occurrence which took place on 11-9-1978 at 6.30 a. m. In Chah Naliwala at Mauza Ahmad Sarani, within the jurisdiction of Police Station Qureshi, District Muzaffargarh. F.
1. R. No. 78 of 1978 (with which we are not directly concerned here) was lodged by Khadim Hussain son of Habib Bakhah at 9-00 a. m. The same day while F. I. R. No. 79 of 1978 (which is of relevance here) was lodged by Muhammad Sharif son of Haji Muhammad on 12- 9-1978. According to the latter F.
1. R. (No. 79 of 1978), Mst. Fazalan Mai, wife of Khadim Hussain (complainant in F.
1. R. No. 78 of 1978) due to estranged relations had gone over to her father's house at Khanewala. On the fateful day, while she was present at Mauza Ahmad Sarani in the house of her maternal uncle Haji Muhammad, Khadim Hussain accused along with seven others, namely, Habib Bakhsh, Karim Bakh~h sons of Elahi Bakhsh, Ghulam Haider son of Allah Wahaya, Allah Wahaya son of Allah Bakhsh, another Allah Wahaya son of Ghulam Haider, Manzoor Hussain son of Imam Bakhsh and Ghulam Farid son of Ghulam Hussain (all armed with dangs) came there to bring back Mst. Fazlan Mai. During the execution of this objective a fight took place in which members of the complainant-party in this F.
1. R. (No. 79 of 1978) also used sotas. Several persons from both sides suffered injuries. Out of the members of the complainant party, Abdul Hakim sustained six injuries including one grievous injury, and he afterwards died in the hospital on account of skull fracture and haemorrhage. From amongst the members of the accused-party, Karim Bakhsh (uncle of Khadim Hussain) sustained seven injuries including the fracture of the skull and lie, too, succumbed to the injuries. As regards the petitioner (Muhammad Akram) the allegations against him and one Wahid Bakhsh alias Baadee are that it was at their instance and with their collusion that the members of the accused-party committed this aggression.
The petitioner, apprehending arrest, moved the Sessions Judge, Muzaffar--garh for bail before arrest, but his application was dismissed vide order dated 16-9-1978. He then approached the Lahore High Court through criminal miscellaneous No. 3513-B of 1978, which was also dismissed in limine by order of the learned Single Judge dated 18-9-1978, on the reasoning that he was named in the F. I. R. For having abetted this crime and that he did not join the police investigation. The petitioner is aggrieved of this order Hence this petition.
This petition earlier came up for hearing before a Bench of this Court on 28-9-1979 when notice was issued to the State. In pursuance of this notice Khawaja Muhammad Afzal, Addl. Advocate- General (Punjab) has appeared before us today with the relevant records. He admits that although in the F. I. R. The part attributed to the petitioner is that the accused acted on his instigation, no further details in which this instigation was done are given in the F. I. R. It appears that during the investigation some witness appeared before the Investigating Officer and stated that the petitioner was an important Zamindar of the locality and was exhorting the co-accused to either bring the woman or the head of her father.
Mr. Muhammad Latif Khan Khosa, learned counsel for the petitioner, submitted that in fact there were serious discrepancies of the witness who appeared before the Investigating Officer with regard to this matte and that on account of the said discrepancies the Investigating Officer, although the results of his investigation are yet to be confirmed by the Deputy Superintendent of Police, expressed the opinion that the petitioner was innocent and had been falsely implicated in the case. There is also no dispute that the petitioner was neither present at the spot nor any overt act attributed to him. We are, therefore, of the opinion that this is a case of further inquiry and I the meantime the petitioner is entitled to the concession of bail before arrest. He will, however, join the investigation and shall appear before the Investigating Authorities as and when required.
The result is that this petition is converted into an appeal and allowed. The petitioner appellant is admitted to bail in the sum of Rs. 20,000 with two sureties in the like amount to the satisfaction of the Assistant Commis--sioner, Muzaffargarh. A short order to the above effect was, passed at the conclusion of the hearing. The above are the reasons for the same.