This order shall dispose of Criminal Miscellaneous Petition No. 5875 of 1969, preferred by Ahmad Noor son of Sher Muhammad, Fateh Khan son of Ahmad Noor, Muhammad Noor son of Allah Bakhsh, Muhammad Khan son of Aitbar, Muhammad Khan son of Dost Muhammad and Abbas son of Surkhru, and Criminal Miscellaneous Petition No. 6852 of 1969, preferred by Falak Sher son of Muhammad Nawaz, Muhammad Nawaz son of Shah Nawaz, Muhammad Khan son of Hayat, Muhammad Afzal son of Hayat and Muhammad Sharif son of Sher Baz.
2. The facts leading to these petitions are that on the morning of 28th September 1967, the petitioners along with seven others, while armed with rifles and guns, fired at Dost Muhammad deceased causing his death and injured Ghulam Muhammad P. W. while they were ploughing the land of their relative Mst. Bivi. Report of the occurrence was lodged at Police Station Katha Sagral by Surkhru P. W. at about 4-00 p.m., the police station being eight miles from the spot.
3. Shortly after, the petitioners and their co-accused were challaned under section 302/307 read with section 148/149 of the Pakistan Penal Code, they made an application in this Court (Criminal Miscellaneous No. 2020 of 1968) under section 498 of the Code of Criminal Procedure, for grant of bail. After elaborate discussion of the facts of this case and the cross-case registered at the police station at the instance of one Muhammad Nawaz, my learned brother Muhammad Afzal Khan, J. found no force in it and dismissed the same on 21st June 1968. By then, the committing Magistrate had recorded the statements of two prosecution witnesses, Their statements, in all probability were not brought to the notice of my learned brother.
4. The petitioners and their co-accused, then presented a fresh application in the Court of the learned Additional Sessions Judge, Sargodha, on 23rd June 1969, which was dismissed. Thereafter, they approached this Court afresh by means of Criminal Miscellaneous No. 4024 of 1969, on or about 7th July 1969. When this petition came up before me on 22nd July 1969, it was stated by Mufti Nazar Muhammad, Advocate, appearing on behalf of the State, that almost all the evidence for the prosecution had been recorded by the committing Magistrate and only a few formal witnesses remained to be examined. In view of this statement, while dismissing the application I directed that the committing Magistrate shall give preference to this case and record the evidence of all the witnesses within two months. I had also added that the said petition was being dismissed for the time being.
5. The aforesaid order was not complied with and as a result whereof, petitions under consideration were filed.
6. Arguments on behalf of the petitioners were mainly addressed by Mr. S. M. Bashir and were supported by Miss Gulshan Ara Alam. Khawaja Muhammad Asghar was heard on behalf of the State.
7. The contention of the learned counsel for the petitioners is, that from the evidence so far recorded, guilt of the petitioners is not established. The prosecution version has been falsified by the then Station House Officer of Katha Sagral Police Station, Syed Fida Hussain, inasmuch as, according to him, the deceased was not injured at the place where the prosecution alleges that he had been fired upon, but at a place near the dera of one Aitbar, a relative of the petitioners. The opinion of the Investigating Officer does not constitute legal evidence, but being adverse to the prosecution, it puts one on an inquiry as to the veracity of the prosecution case, as held in Rehmat Ullah alias Rehman v. State and another (1). In this case, their Lordships allowed bail to the appellant on the ground that he himself had not fired at Bakhsha and the question of his vicarious liability in regard to the commonness of his intention with his co- accused for firing at Bakhsha and its further extension to the result that followed, namely, the death of Mst. Fatima, will have to be determined at the trial.
8. In the instant case before me, the prosecution case itself is, that only three persons namely, Khan Muhammad son of Sultan, Muhammad Ali son of Fateh Khan and Falak Sher son of Muhammad Nawaz, fired at Dost Muhammad deceased, whereas Muhammad Nawaz son of Shah Nawaz caused injuries to Ghulam Muhammad P. W. With regard to the rest of the petitioners and some of their co-accused, the allegation is, that they also kept on firing, apparently aimlessly.
9. So far as the persons, who actually fired at Dost Muhammad deceased and Ghulam Muhammad P. W. are concerned, their case stands on a different footing than the case of those, who are alleged to have fired aimlessly. I am inclined to make this distinction, because of the admitted tendency amongst the people living in the villages to try to rope in as many persons as possible from the opposite faction, if an unfortunate incident, as the present one, takes place. I am not inclined to give any opinion at this stage as to whether, Dost Muhammad was actually hit, when he was in the land of Mst. Bivi, or elsewhere, because that is a question, which shall be decided by the trial Judge after recording entire evidence in the case, that is the evidence for the prosecution and for the defence, if any.
10. Learned counsel for the State contended, that in view of the fact, that the previous application for grant of bail of the petitioners had been rejected, the instant applications also deserved the same fate. This contention has no force, inasmuch as, the application dismissed by my learned brother Muhammad Afzal Khan, J. was dismissed at a time when statements of only two prosecution witnesses had been recorded and, in all probability even those were not brought to the notice of my learned brother. Except the formal witnesses, almost the entire prosecution evidence has now been produced and, therefore, it is possible to ascertain therefrom, as to whether, reasonable grounds exist to establish, that the petitioners are guilty of murder and attempted murder, ln fact, the contention of the learned counsel for the petitioners is, that the petitioners acted in the exercise of the right of private defence of property and person inasmuch as they were in actual possession of the land, which was being ploughed by Dost Muhammad deceased and his companion
(1) 1970 S CMR299 Ghulain Muhammad. This is once again a question, which would require a decision, when the entire evidence has been recorded and I would, at this stage, not venture to give any opinion about it.
Suffice it to say, that Khan Muhammad son of Sultan and Muhammad Ali son of Fateh Khan, who fired at Dost Muhammad deceased, have not filed an application for grant of bail. Only Falak Sher son of Muhammad Nawaz is an applicant along with others. Muhammad Nawaz son of Shah Nawaz, who is alleged to have fired at Ghulain Muhammad P. W. has also applied for grant of bail.
11. I am mindful of the fact, that the evidence discloses that the shot fired by Falak Sher missed the deceased. Muhammad Ali son of Fateh Khan has not applied for bail. I would be reluctant to grant bail to Falak Sher because the question of his constructive liability will be considered at the time when the entire evidence from both sides has been recorded. So far as Muhammad Nawaz son of Shah Nawaz petitioner is concerned, it is apparent from the first information report as well as from the evidence, that he caused injuries to Ghulam Muhammad P. W., therefore, he too is not entitled to the grant of bail. As no particular part has been assigned to the remaining petitioners, except that they fired aimlessly, I feel that they are entitled to the grant of bail, because of admitted tendency on the part of the people living in rural areas to implicate as many persons from the opposite faction as they possibly can. I would, thus, without discussing their case on merits and expressing final opinion, allow Criminal Miscellanous Petition No. 5875 of 1969, and partly allow Criminal Miscellaneous Petition No. 6852 of 1969 and grant bail to all the petitioners in the first application and to all except Falak Sher son of Muhammad Nawaz and Muhammad Nawaz son of Shah Nawaz, in the second application. The bail application of these two persons is dismissed. With regard to the remaining petitioners in these petitions, it is directed that they shall be released on bail, provided they execute bail bonds in the sum of Rs. 25,000 (rupees twenty-five thousand) each with two sureties each, in the like amount to the satisfaction of the committing Magistrate.
12. The record of the case shall be returned to the Court concerned forthwith. .