' The petitioners are reported against vide F.I.R. No,235, dated 9th July, 1983 with Police Station, Tandlianwala in respect to an incident which took place two hours earlier in Chak No,408/G.B. For alleged offences under sections 302/109, 149 and 148, P.P.C.
2. The facts in brief are that Khadim Hussain, a brother of the deceased Muhammad Amin, lodged this F.I.R. Claiming to be eye-witness of the occurrence. According to the complainant's version, he alongwith Aman Ullah and Muhammad Ashraf were going on foot from Chak No,409/ G.B. To Mandi Tandlianwala. After they had travelled a short distance from behind came Muhammad Amin the brother of the complainant on a cycle. When the deceased ,Muhammad Amin reached near a bridge at a short distance,he was attacked by Shama, Mama, Yasin, Peelu and Khalil. Out of them Shama and Mama were armed with iron rods whereas the others had the conventional Dandas.
They came out of a sugarcane field and stopped the cycle of the brother of the complainant.
Thereupon, Shama and Mama put a cloth around the neck of the deceased and made him fall down. Thereafter, the accused gave a merciless beating with the iron rods and Dandas to the deceased Muhammad Amin. The complainant and his companions ran towards the scene of occurrence whereupon the accused left the deceased and ran away towards Chak No,409/G.B.
The seats of injuries were the legs and the hands.
3. The deceased was thereafter taken on a tractor-trolly to Civil Hospital, Tandlianwala but the doctor was not available and then he had to be further carried up to Samundri where he died after sometime. According to the medico-legal report, none of the injuries by itself is sufficient to cause death in the ordinary course of nature but is the result of the collective injuries.
4. During the hearing of this bail application, the learned counsel for the petitioners has pointed out that there is a background of enmity between the complainant party and the accused named in the F.I.R. And attributed overt act. It is pointed out that the deceased Muhammad Amin had abducted mamun-zad of Yasin accused and a case was registered on that account. Thereafter, Yasin accused had abducted wife of Shaukat, a close relative of deceased Amin, and another criminal case was registered. Then, there is another instance wherein Shaukat and his brother Liaqat were accused of murdering the mother of Yasin who happened to be the sister-in-law of Shama and Mama accused and aunt of Peelu accused. It is further pointed out that Yasin is nephew of Mama and Shama and Peelu is the son of Mama. This background of enmity has been confirmed by Muhammad Sher A.S.I. After consulting the record with him.
5. I have gone through the F.I.R., as well as the available record. On a careful perusal of the F.I.R. I do find that the 'complainant has completely suppressed the material circumstance of enmity between the complainant and his deceased brother Amin on the one hand and the five actual assailants named in the F.I.R. This has been done so as to give an innocent look to the accusations made in the F.I.R. The two petitioners however,have been introduced into the F.I.R. On the strength of evidence of two persons, namely Haq Nawaz and Muhammad Nawaz. The former is a real nephew of the deceased Muhammad Amin and the latter is the real brother-in-law of the deceased. These two persons claim to have heard from the mouth of the two petitioners, namely, Shahadat and Riaz about ten days prior to the occurrence that Muhammad Amin deceased would be done away with.
It is pointed out by the learned counsel for the petitioners that it is rather surprising that these persons who now claim to be witnesses of "conspiracy" never informed anybody muchless the police. This according to the learned counsel was a cooked up evidence to fit the noose around the neck of the two petitioners.
6. It is nobody's case that the petitioners had played any overt act in the actual commission of the crime itself.
7. The learned Assistant A.-G, however, took up the stance that the case of the two petitioners was not distinguishable and both had to stand or fall together for the purpose of this bail.
8. The learned counsel for the complainant however has been allowed by me the concession of addressing at he time of decision of this bail application. He contended that the F.I.R. Was prompt inasmuch as it was lodged within two hours of the occurrence. There is no dispute with this fact. He further submitted that though not mentioned in the F.I.R. But subsequently there were at least three persons, namely, Mansha, Shamir and Mazhar Khan who heard the deceased mentioning to them that two petitioners had got him attacked. This argument is met by the learned counsel for the petitioners by submitting that as per their statements they had boarded the trolly while the deceased was being carried to the hospital and it is thereafter that he died, therefore, this event at any rate preceded the lodging of the F.I.R. It could not therefore have been omitted from a due mention while lodging the F.I.R. By none else than the brother of the deceased who was also accompanying.
9. The learned counsel for the complainant then argued that the petitioners have been found implicated as a result of the investigation conducted by the police. This by itself is not a decisive factor for the purpose of bail. The Court still is not absolved of its duty to apply its own mind and come to the conclusion whether there exist reasonable grounds for believing that the accused are guilty of the offences with which they are charged.
10. The learned counsel for the complainant next argued that in so far as the Zimnis showed it has been noticed in the course of the investigation that Muhammad Amin deceased was a witness against Riaz petitioner in the case under the Hudood Ordinance. Therefore, according to him, though there may be no direct motive on the part of Shahadat petitioner, the same cannot be said to hold good in so far as Riaz petitioner is concerned.
11. After hearing the learned counsel for the parties and keeping in view the overall features of the case, I must observe that in order to implicate the petitioner Shahadat, the sole reliance is being placed on the evidence of Haq Nawaz and Muhammad Nawaz who, as already noted, are close relatives of the deceased. In the background of the enmity which is admitted to be prevailing between the parties, this case carries its own features. From the wording of the F.I.R., it is further clear that the said petitioner Shahadat has been involved in this case on the basis of his general character of remaining mischief happy. The learned Additional Sessions Judge while refusing the bail has been primarily influenced by the fact that he had dismissed the pre-arrest bail application. He overlooked that the considerations for' grant of pre-arrest bail and post-arrest bail are entirely different and thus previous rejection of a pre-arrest bail application should not have been allowed to influence his mind in so far as adjudication of a post-arrest bail on merits is concerned.
12. In so far as Shahadat petitioner is concerned, apart from the testimony of the two witnesses named in the F.I.R. Namely, Haq Nawaz and Muhammad Nawaz, there is nothing in the hands of the prosecution till today as to enable me to come to the conclusion that there exist reasonable grounds for the belief that the petitioner is guilty of the offences with which he is charged. In the F.1.R. Itself, the complainant has suppressed the material fact that there was a background of enmity resulting in multiple cases between the deceased Muhammad Amin himself and his relatives on the one hand and the actual assailants on the other. This fact stands confirmed by the A.S.I. Who is present with the record. As such, there do arise certain doubts as regards the implication of this petitioner and he must therefore ungrudgingly be extended the benefit even at the bail stage.
13. Now, I will take up the case of Riaz petitioner. In respect of him, a distinction is sought to be drawn on the basis that it is mentioned in the F.1.R. That there was a direct enmity between him and the deceased Amin as the latter was prosecuting the case under the Hudood Ordinance which was registered against the former. The F.I.R. In this case is also with the A.S.I. Muhammad Sher who has read it out in open Court. This does not mention the name of Muhammad Amin as an eye-witness of the occurrence. There was thus direct motive for the five actual assailants to attack the deceased independent of the alleged instigation by the accused. The learned Assistant A.-G. Mr. S.M. Zubair therefore appears to me to be right in taking up the stance that this distinction being sought to be drawn between the two accused is more artifical than real. This accused also has played no active role nor participated in the commission of the offence. The grounds which hold good for the purpose of Shahadat petitioner therefore would equally enure for the benefit of this accused. The cases of these two accused would therefore, appear to me to be one of further inquiry. In the circumstances of the case, the two petitioners are admitted to bail in the sum of Rs,30,000 (rupees thirty thousand) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Samundri.