1. ' This revision petition arises out of an order of the District Criminal Court, Mirpur, dated 31-12-1979 whereby Sardar Khan, Rahimdad Khan and Ahmed Khan, respondents were allowed bail, under section 5 of the Islami Tazeerati Act read with sections 302 and 109, A. P. C.
2. ' The facts of the case are that G'..2.Us Muhammad lodged a report on 17-8-1979 at Police Station, Afzalpur to the effect that he along with his nephew Muhammad Hanif was going to the house of Sardar Khan, Khadim Hussain, Fazal Ahmed, Sardar Khan, Rahimdad Khan, Ahmed Khan, Nazim and Mushtaq Hussain, accused persons, in consequence of a conspiracy and pre-planning, were already sitting in the house of Khadim Hussain. Khadim Hussain and Nazim were armed with '12 bore gun, Mushtaq Hussain with 12 bore revolver and others with sticks. When the complainant arrived near the house of Khadim Hussain, he was fired upon by Khadim Hussain and Nazim, in consequence of which he received injuries on his face, chest, abdomen, arms and thighs.
3. Muhammad Hanif, his companion received no injury. The occurrence was witnessed by Muhammad Hanif, Fazal Ellahi, Feroze Khan who came to his rescue and removed him to the police station where he lodged a report. Ghaus Muhammad was admitted in C. M. H. Mirpur where he expired on 19-8-1979. The respondents were allowed bail by the trial Court in view of the fact that no overt act was attributed to them.
4. ' Khan Ali Muhammad, learned counsel for the complainant-petitione: argued that all the respondents were named in the F.
1. R. There was at allegation of conspiracy and forming of unlawful assembly against the respondents and this being the position, the trial Court was wrong to release the accused- respondents on bail. It was pointed out that the F. I. R. Lodged by the deceased was to be deemed as dying-declaration and as strong evidence, in the eye of law. In support of his contention, he referred to AIR 1935 Pesh. 41, PLD 1967 Pesh. 321, PLD 1967 Pesh. 379 and PLD 1968 SC 349.
5. ' It is a settled principle of law that at bail stage it was in the interest of safe administration of justice to avoid touching upon merits of the case. It was correct that all the three respondents were mentioned in the F. I. R. By the deceased. There was no attribution of any overt act to them. The allegation against the accused-respondents was that as a result of conspiracy and pre-planning, they had assembled at the place of occurrence prior to the arrival of the deceased. The deceased was resident of village Lali which was, as stated at the bar, situated at a distance of one mile from the place of occurrence. The facts of scheduled visit of deceased alongwith his nephew to the house of his maternal uncle, its knowledge to accused persons and consequent premeditation, conspiracy and formation of unlawful assembly, are yet to be explored. In addition to this, other relevant factors relating to coming of the deceased on path leading to the place of occurrence etc. Are to be discovered in the trial. At present, no other evidence except the presence of accused- respondents at the place of occurrence, was available on record. In my view, in case like one in hand where *deep appreciation of merits was necessitated or further inquiry was required in order to hold that reasonable grounds tending to connect the accused with commission of offence, appeared, it was not advisable to withhold bail. The maximum part ascribed to the accused- respondents is their mere presence at the place of occurrence. It was also yet to be determined that the presence of the accused persons was, natural or in consequence of some planning, as alleged by the prosecution. Another factor putting on caution was that all the respondents were true brothers, whereas Khadim Hussain, the principal accused was nephew of the respondents. The relationship of Mushtaq Hussain and Nazim with other accused persons was yet to be ascertained.
6. Prima facie, the respondents being members of one family, were implicated in the case which puts one on alert that unless a definite part in the occurrence was attributed to the accused persons, they should not be deprived of their liberty for mere presence at the place of occurrence, particularly in view of relationship with the principal accused person. The recent trend of Courts in matters of bail in offences for which sentence of death or life imprisonment was provided, is that where no injury or overt act is attributed to an accused, bail is generally allowed. In support of this view, Ch. Muhammad Taj. The learned counsel for the accused-respondents has referred to unreported cases, namely Muhammad Riaz and others v. State decided by the Supreme Court of Azad Jammu & Kashmir on 10-1-1977 and Shamim and others v. State, decided by former Chief Justice of High Court, Mr. Justice Khawaja Muhammad Yusuf Saraf, on 17-2-1979. In case of Muhammad Riaz and others v. State, the allegation was that Muhammad Riaz, Muhammad Nawaz and Khushi Muhammad who were allowed bail by Mr. Justice Ch. Rahim Dad Khan, Chief Justice of Supreme Court, were responsible for initiation of trouble which resulted in the death of Muhammad Malik deceased by bullet of pistol fired by Muhammad Rafique accused. The learned Judge was of the view that the evidence collected by the Investigating Agency led to an inference of constructive liability against the accused and on this account the bail was accepted. In the case of Shamim and others v. State Mr. Justice M. Y. Saraf, former Chief Justice of this Court, was of the view that where no overt act was attributed, bail could not be withheld. He further went on to observe that the tendency in our country has developed to implicate innocent relatives of an offender. The tendency of Police Department from olden days was that if some body was named in the F. I. R., they thought it was necessary to rope him in, lest the F. I. R. Was disbelieved and the whole case was destroyed. He was of the view that this was a wrong tendency because the duty of all of us was not to support the falsehood but to find out the truth. That was a case of murder, and names were given in F. I. R. But the presence on spot of accused persons released on bail, was yet to be determined and as such, the bail was allowed to all the accused except the principal one. Ch. Muhammad Taj, the learned counsel for the accused-respondents argued that in a report under section 173, Cr. P. C. The Investigating Officer expressly mentioned that the allegation under section 148/149, A. P. C. Was not proved. The accused were challaned under section 5 of the Islamic Penal Laws Act read with sections 302 and 109, Penal Code. The crux of the argument was that the allegation of forming of an unlawful assembly was found incorrect by the Investigating Officer. A perusal of the report shows that the contention of the learned counsel for the accused- respondents was correct on that point. The opinion of the Investigating Officer was not binding on the Court and the Court had to appraise the total evidence collected by the Investigating agency, in order to hold whether reasonable grounds tending to connect the accused with commission of offence were available or not, but 4 at the same time, in case where the State has not challenged the grant of bail, the opinion of the Investigating Officer, especially when in consonance with available evidence, gets some weight. In my view, the case-law referred by the learned counsel for the complainant-petitioner would not be of any help to him.
7. ' In AIR 1935 Pesh. 41 it was observed that conviction could be passed on dying-declaration alone if after applying tests it was found to be true and genuine. Corroboration was not considered necessary in that case. This observation was made while deciding the case on merits. Thus, it is evident that the principle laid therein was not applicable at bail stage, as the dying declaration was yet to be proved and tested on the principles of true and ganuine dying-declaration.
8. ' In PLD 1967 Pesh. 321 the deceased who lodged the F. I. R., alleged that the accused who were allowed bail, were armed with rifles and shot-guns and fired on the deceased along with the principal accused. The allegation was supported by medical evidence which showed that the injuries on the person of the deceased were caused with two types of weapons. In the present case, no such allegation of infliction of injuries was attributed to the accused-respondents.
9. ' In PLD 1967 Pesh. 379 the trial Magistrate granted bail to 3 accused persons on the ground that one of the accused mentioned in the F. I. R. Was not challenged by the police on the ground of alibi.
10. The learned Judge, Mr. Justice A.-G. Khattak was of the view that the accused persons could not be allowed bail by mere fact that one of the named accused was not challaned by the Investigating Officer. The learned Judge was convinced that there were reasonable grounds which connected the accused with commission of offence and in this view, the by the Magistrate was cancelled. As stated earlier, the facts of this case are distinguishable from the facts of the case referred to above.
11. ' In PLD 1968 SC 349, one Abdul Malik accused moved for grant of bail in the Supreme Court. The allegation against him was that he was one of the 6/7 persons who attacked the deceased and caused his death by firing. The allegation against the accused was that he was one of the unnamed accused persons who had fired shots to scare away people in order to make their retreat. Bail was refused in High Court. Mr. Justice Sajjad Ahmed Jan observed that the Supreme Court ordinarily did not interfere with the discretion exercised in the matter of bail by the Courts below unless it was found that there had been an abuse of powers of the process taken, resulting in a complete miscarriage of justice. In that case, the learned Judges were of the view that they did not propose to interfere with the order of the learned Single Judge to grant bail to the petitioner by engaging themselves into an examination of reasonableness of the grounds against the petitioner as regards the charge of murder against him. On this view, the petition was rejected. The observation of the learned Judges was not applicable to the present case as the same was based on the general principle that in case reasonable grounds appeared to connect the accused with the commission of offence, bail was seldom allowed in an offence for which the sentence was death or imprisonment for life.
12. Mushtaq Hussain accused who allegedly was armed with '32 bore revolver, was also allowed bail in the case by my learned brother, Mr. Justice Sardar Muhammad Sharif Khan, as stated at the bar by the learned counsel for the accused-respondents. This was another factor lending support to the case of the respondents.
13. ' In this view of the matter, there is no reason to interfere in the discretion exercised by the District Criminal Court, Mirpur. Therefore, the revision petition being devoid of force, is hereby rejected.