The petitioner has been accused of an offence under section 302/34, P. P. C. Along with his brother Akhtar Mir. The deceased in this case is Tariq Saeed and the first information, report has been lodged by his brother Khalid Saeed. It is mentioned in the F. I. R that there was a background of hostility between Akhtar Mir and his party-men on one side and Khalid Saeed and his partisans on the other. A case had been registered against Akhtar Mir and his party-men in March 1970. Another case was registered against them in Police Station Naulakha in September 1970, for causing hurt with knife to Anwar Saeed and Tariq Saeed deceased.
2. The occurrence took place on 21st of October 1970 at about 8-30 p.m. In a street near Ghas Mandi. Ashraf Mir the present petitioner along with his brother Akhtar Mir were present there. On seeing the first informant and his brother Tariq Saeed, Akhtar Mir took out a revolver from his dub.
The present petitioner then raised a lalkara that Tariq Saeed should be killed. At this Akhtar Mir fired three shots one of which found its way in the abdomen of Tariq Saeed.
Besides the first informant, the occurrence was seen by Naheed and Muhammad Yousaf. The injured person was taken to Mayo Hospital where he succumbed to the injuries after first aid had been rendered to him.
3. The petitioner was arrested on 22nd of October 1970. He applied for bail to the Sessions Court. His bail application was dismissed by Sh. Bashir Ahmad, Additional Session Judge, Lahore on 19th of February 1971. The learned Additional Sessions Judge observed that the lalkara raised by the petitioner amounted to abetment and that the petitioner was not entitled to the grant of bail for that reason. He in this connection relied on Chiragh Din and others v. State (PLD 1967 SC 340).
4. The petitioner thereafter moved the High Court for bail.
5: Mr. Mumtaz Hussain the learned counsel for the petitioner has urged that Akhtar Mir to whom the fatal injury is ascribed had already taken out the revolver on seeing the deceased and the first informant and there was no occasion for the present petitioner to shout that Tariq Saeed should be killed. The learned counsel points out that according to the narration of facts in the F. I. R. It was Akhtar Mir who was hostile to the party of the deceased and the name of the petitioner has not been mentioned as a person who was concerned in any way with the litigation that was going on between Akhtar Mir and his partisans on one side and the first informant and his partisans on the other. It is his contention that the name of the petitioner has been introduced in an attempt to throw the net to wide. Mr. Mumtaz Hussain has submitted that the learned Additional Sessions Judge went far beyond the scope of his jurisdiction in this bail matter in making a categorical observation that the petitioner's at amounted to abetment.
6. Mr. Mumtaz Hussain has also pressed into service the plea of alibi raised by the petitioner. It is his case that he and his brother and co-accused Akhtar Mir were in the office of Khawaja Abdur Rahim Bar-at-law at the relevant the assisting in the preparation of a case which was to be heard. Next morning by Muhammad Afzal Zullah, J. The learned counsel also states that the street here the occurrence took place is a narrow one and in surround by huge buildings. It is his contention that if three shots had been fired at least to of them should have stuck in the walls of the buildings around. He also points out that there was no blood at the spot and it is his suggestion that the occurrence did not take place in the manner narrated by the prosecution.
7. Mr. Mumtaz Hussain has also assailed the character of the witnesses cited in the F. I. R by saying that Muhammad Yousaf is a collaborator of the first informant in the litigation against Akhtar Mir and the other namely Naheed is the first cousin of the first informant.
8. The learned State counsel and Malik Amjad Hussain, Advocate who appears for the complainant have opposed this application for grant, of bail. It is their case that the fatal shot was fired at the instance of the petitioner and after he had raised the lalkara. They-have further maintained that while dealing with the bail matter, I cannot examine the merits of the case including of alibi. Malik Amjad Hussain in this connection referred to Muhammad Aslam and others v. The State (PLD 1967 SC 639). In this case their lordships of the Supreme Court have indicated guidelines to be, followed by the High Court and the lower Courts regarding grant of bail. But the dictum also appears to be that subject to these guidelines each case is to be decided on its own facts. Mr. Amjad Hussain has also pointed out that the first informant had stated in the F. I. R. That Khawaja Abdur Rahim Bar-At- Law in the helper of the accused and on this premises he maintains that the plea of alibi was supported before the police by partial evidence.
9. The case in the first instance was investigated by S. I. Ghulam Haider of Naulakha. Police Station who is present in Court. He states, that he had recorded the statements of the prosecution witnesses as well as some statements supporting the plea of alibi of the accused. The challan was submitted by him to the Martial Law Authorities on 2nd of November 1970. It however appears- that certain applications were moved on behalf of the accused to the higher authorities expressing their dissatisfaction with the investigation' of the case. Inspector Muhammad Din Khan of the Crimes Branch is present in the Court and states that he has been entrusted with the task of investigating the case afresh on' 12th of December 1970, but has not, been able to start re- investigation because the record was made available to him only on 19th of February 1971, and thereafter he was busy in the investigation of other murder cafes: He has also shown me a note from his records from which it appears that the Martial Law Authorities have refused to hear the case and have returned the same for trial by a civil Court.
10. The above narration of facts would show that the matter is still pending investigation and the correctness or other--wise of the findings of S. I. Ghulam Haider has yet to be god into by the crimes Branch. It is also clear from the F. I. R the Akhtar Mir had already taken out the revolver when the petitioner is said to have raised a lalkara. No, direct enmity of the petitioner with the deceased has been alleged.
11. The question whether or not the accused was present at the spot whether or not he raised a lalkara and whether or not the raising of lalkara amounted to abetment, have yet to be gone into by the crime Branch. In any case I find for in the submission made by Mr. Mumtaz Hussain that since further enquiry is to be made into the allegations against the petitioner by the crime Branch, he is entitled to bail under subsection (2) of section 497, Cr. P. C.
12: In view of what I have said above I would direct that the petitioner shall be released on bail in the sum of Rs. 15,000 (Rupees fifteen thousand) with to sureties in the sum of Rs. 7,500 (Rupees seven thousand five hundred) each to the satisfaction of the Assistant Commissioner, Lahore.
13: Copy Dasti on payment.