This order will disposed of Criminal Miscellaneous Nos. 6247, 6761 and 6763 of 1970. The three petitioners in these applications are Muhammad Ashiq Ghulam Hussain and Sanaullah, respectively. All of them have been named as accused persons in a double murder case. The F. I. R.
Shows that there is a mosque by the name of `Masjid Sahaba-i-Karam at Ravi Road, Lahore. There was a. Dispute about a vacant site of land adjacent to that mosque between the management of the mosque and Sh. Muhammad Ismail and his son Ashfaq who have lost their lives in the present incident as a result of firing by Muhammad Sadiq the co-accused of the peti--tioners before me. A civil suit was going on between the management of the mosque and Sh. Muhammad Ismail, with regard to the possession of the land in dispute and a commis--sion had been appointed by the civil Court for inspection of the spot who was to arrive there on 28th of August 1970, which happened to be a Friday. After the Jumma prayers, Ghulam Hussain and Sanaullah petitioners exhorted the audience that they should assemble near the house of Sh. Muhammad Ismail in order to give sacrifice for the cause of God and to take forcible possession of the land belonging to Sh.
Muhammad Ismail. Muhammad Sadiq the co-accused of the petitioners and his brother Muhammad Ashiq, petitioner in Criminal Miscellaneous No. 6247 of 1970, who were armed respectively with a gun and a pistol, came with a cart load of chairs. Besides the cart driver, they were accompanied by to other persons whose names were not known to the first informant but whose description was given in the F. I. R. The accused above-named started putting the chairs in the courtyard of Sh. Muhammad Isma il who objected to this action of trespass and there was an exchange of abuse between the parties. Muhammad Sadiq and his companions pushed Sh.
Muhammad Ismail and his son Ashfaq towards the road. Muhammad Sadiq then fired from his gun and the shot fell on the chest of Muhammad Ashfaq. Muhammad Sadiq fired another shot which hit Sh. Muhammad Ismail on the chest. Both of them fell on the places where they were standing.
After that Muhammad Ashiq petitioner fired to shots from his pistol but no one was hit. Ghulam Hussain and Sanaullah petitioners along with Abdur Rehman, who has been bailed out by the learned Additional Sessions Judge by his order dated 23rd of September 1970, were standing in the mosque and were inciting the assailants to finish their opponents and to take forcible possession of the land. Muhammad Sadiq loaded his gun again and after firing one more shot, all the five persons who had come alongwith the cart disappeared. The occurrence was seen by the widow of Sh. Muhammad Ismail his sons Muhammad Akhlaq, Muhammad Ishtiaq, Mistri Sarfraz Ali, Sufi Tai and Abdul Hamid.
2. Muhammad Ashiq applied for bail before arrest to the Sessions Court but his bail plea was rejected by Qazi Muhammad Dastgir, Additional Sessions Judge, Lahore, by order dated 2nd of September 1970. He applied for bail before arrest to the High Court on the ;anie day and Shaukat Ali, J. After summoning the Investigating Officer granted interim bail: to Muhammad Ashiq on the 4-9-1970, on the ground that according to the Sub-Inspector the residents of the locality were not supporting the prosecution version as contained in the F. I. R. An application thumb-marked by several persons of the locality was also produced before his Lordship. It was stated in that application that the petitioner was not present at the scene of the crime. This application was handed over. To the Sub-Inspector,, for placing the same on the police record.
3. On 14th of September 1970, the matter came up for con--firmation of bail before Muhammad Afzal Cheema, J. Who observed that on the basis of the material placed before him, he did not consider it a case for confirmation of bail. His Lordship, however, directed that since Shaukat Ali, J.
Had already handled this matter, it should be placed before him. Muhammad Afzal Cheema, J.
Further suggested that if Shaukat Ali, J. Was disposed to differ with his views, the case should be placed before his Lordship the Chief Justice for referring the same to a third Judge.
4. The case again came up before Shaukat Ali, J. On 15th of September 1970, and his Lordship ordered Mr. Ghulam Muhammad Khan Niazi, the D. S. P. Of the Ilaqa to appear before him on 16th of September 1970. On this latter date Mr. Niazi appeared and stated that the investigation will take another week. The case was then adjourned to 25th of September 1970, when it came up before Shameem Hussain Kadri, J. Who observed that he would not like to handle the case. The Chief Justice then marked the case to me.
5. The other to petitioners, namely, Sanaullah and Ghulam Husain have already surrendered to the police and they have also applied for bail vide applications mentioned above. These to petitioners and Abdur Rehman their co-accused had applied to the Sessions Court, for bail and Qazi Muhammad Dastgir, Additional Sessions Judge, Lahore by his order dated 23rd of September 1970, granted bail to Abdur Rehman but refused bail to Ghulam Hussain and Sanaullah on the ground that they had been inciting the public after the Jumma prayers and were also present when the occurrence took place. He granted bail to Abdur Rehman, who is Sani--tary Inspector, on the ground that the only rule ascribed to him was of raising a lalkara and that he had produced a register supporting his plea of alibi.
6. The learned State counsel and Mr. Ijaz Hussain Batalvi the learned counsel for the complainant urged that there is direct evidence of the inculpation of Muhammad Ashiq in the case. He had come along with his brother, both of whom were, armed with firearms, to the spot, along with three other persons to take forcible possession of 'the land in dispute. According to these learned counsel, on the allegations made in the F. I. R. It could be inferred that Muhammad Ashiq and his co-accused had come with a common object and since Muhammad Ashiq himself. Was armed with a pistol and his brother was armed with a gun, he knew that it was likely that a murder may be committed in the course of the fulfilment of their aggressive design to take forcible possession of the land. Out of the eye-witnesses, named above, in this case, the, affidavits of Sufi Taj Din and Abdul Hamid have been placed on the record. Both of them have sworn to the correctness of the prosecution story and have asserted that they are not in any way connected with the deceased.
7. The learned counsel for the petitioners pointed out that a large' number of persons belonging to the locality had borne testimony to the alibi of Muhammad Ashiq and had belied the prosecution story. A number of affidavits of the residents of the locality have been attached with the application filed by Sanaullah to the effect that the prosecution story was false and Sanaullah was not present at the the of the occurrence. Ghulam Hussain has also taken a plea of alibi. Mr. Ghulam Muhammad Khan Niazi D. S. P. Was present during the hearing of these applications. He informed me that he had made a note in the zimnis on 7th of September 1970, that he was not satisfied with the evidence of alibi produced before him by the three petitioners and that he had directed them to produce further evidence if they so liked. He stated that till 15th of September 1970, no further evidence was produced before him and it was only after the adjournment of the case by, Shaukat Ali, J. On 16th of September 1970 when further evidence of alibi was produced by the accused before him. He admitted that this further evidence was not in the shape of any document and was the repetition by some other persons of the same evidence which had been led before him before 7th of September 1970. He stated that this further evidence had carried conviction with him.
8. In my view, it will be contrary to the principles of safe dispensation of criminal justice and smooth investigation if the question of the culpability of the accused is left to be decided by the police on the basis of statements of persons who were never relied upon by the prosecution and in support of whose statements there is no documentary evidence. It would mean that the police will be performing judicial functions and deciding the cases during investigation. The question whether there are reasonable grounds to believe that a person is guilty of an offence punishable with death or trans--portation is to be decided at the initial stages on the allega--tions made in the F. I. R. The statements of the eye-witnesses and other incriminating material in the bands of the prosecu-- tion. The plea of alibi like other plea raised by the accused is to be examined by the Courts. The prosecution has to proceed with its case on the basis of the evidence on which it has relied at the initial stages unless there is any unimpeachable documentary evidence to discredit the evidence of the prosecution witnesses or there is any inherent improbability in the case. In my view, therefore, the oral evidence led before the police by the accused after 16th of September 1970, and the affidavits attached to the application of Sanaullah have not improved their case in any manner.
9. The eye-witnesses have consistently named Muhammad Ashiq as the person who had a pistol with him and who used it. I agree with Muhammad Afzal Cheema, J. That it was not a case for grant of bail to Muhammad Ashiq petitioner as the consistent testimony of the prosecution witnesses cited in the F. I. R. Which removed un-rebutted by any documentary evidence, clearly shows that there are reasonable grounds for believing that--he was guilty of an. Offence punishable with death or transportation. I, therefore, cancel the bail granted to Muhammad Ashiq and direct that he shall surrender his bail bonds.
So far as Ghulam Hussain and Sanaullah petitioners are concerned, the learned Additional Sessions Judge tried to draw a distinction between their case and that of Abdur Rehman All three of- them are said to have raised lalkaras and incited the accused to finish the complainant party.
The learned Additional Sessions Judge has rightly observed that this is a question of evidence whether the rule described to these persons amounts to conspiracy, abetment or participation in the crime in the first degree". He has also observed that it is pre-mature to assess their culpability.
The F. I. R. Shows that Ghulam Hussain and Sanaullah were in the mosque when they were raising the lalkaras. The true import of the speech made by these to ~ petitioners after the Juma prayers and the lalkaras raised by them can be gathered only when the evidence is recorded in the case. I, therefore, think that their case is almost at par with that of Abdur Rehman. I direct that both Ghulam Hussain and Sanaullah be released on bail in the sum of Rs. 10,000 (Rupees ten thousand) each with to sureties each in the sum of Rs. 5,000 (Rupees five thousand) each in the like amount to the satisfaction of the Assistant Commissioner, Lahore.