1. NASIM HASAN SHAH, J.-- The petitioner, Muhammad Iftikhar Tahir, is accused alongwith Muhammad Haroon Rashid and Altaf Hussain for offences under sections 302, 307 read with section 34, P.P.C.
2. The case of the prosecution briefly is that relations between 11taf Hussain accused and has wife Mst. Shahnaz Begum were estranged. On the day of the occurrence, the complainant, Muhammad Sadiq P.W., who is the brother of Mst. Shahnaz Begum, learnt that the spouses had again 'quarrelled. He, therefore, went to enquire about the welfare of his sister Mst. Shahnaz Begum. On reaching there he found the petitioner and Altaf Hussain, co-accused, were present and they inflicted injuries on him as well as his companion Muhammad Ismail P.W. The complainant, therefore, went to inform Anees-ur-Rehman and all of them went to the house of the father of Altaf Hussain, accused, namely, Muhammad Haroon Rashid--the third accused. Here Anees-ur- Rehman was given injuries with a sharp-edged weapon, as a result of which he died.
3. The petitioner Muhammad Iftikhar Tahir applied for bail and his case was taken up by a learned Single Judge of the Lahore High Court (Mr. Justice Riaz Ahmad) on 15-7-1984. On his behalf, it was, inter alia, submitted before the learned Judge that as a result of the second investigation conducted by the D.S.P. Shorkot, the petitioner was found innocent and that for this reason why he was placed in column No.2 in the report under section 173, Cr.P.C. And it was submitted that he was, therefore, entitled to be released on bail. The learned Judge was not inclined to accept this submission and observed as follows:- "I have carefully considered these contentions, and I have also gone through the entire records of the case. It is true that the D.S.P. Shorkot who had also conducted the investigation, had unlike the local police, found the petitioner innocent, but in my view such conclusion is against the weight of evidence collected during the investigation. Both sets of eye-witnesses of the to occurrences support the prosecution case, and the stamp of injuries on the petitioner negatives his innocence.
4. Regardless of the fact, as to whether the opinion of the police officer as to the innocence or guilt of the petitioner, the salient features of the case lead me to conclude, that it is not a fit case for the grant of bail to the petitioner at this stage. The contention raised by the learned counsel referred to above, requires to be dealt with, more elaborately by the trial Court in the field of the appreciation of evidence. I am afraid that I cannot go deep into it, to analyse it, so as to give finding thereon, because it is relatable to the function of the trial Court, which has the privilege to hear and record the evidence."
5. However, in conclusion, the learned Judge was pleased to direct the learned Sessions Judge to take steps for expeditious disposal of this case and also directed him to send a report as to the point of the at which the trial would commence. The application for bail was dismissed with these directions.
6. However, Muhammad Haroon Rashid, co-accused, had separately applied for bail before the High Court and his case was taken up by another learned Single Judge on 30-7-1984. The said learned Judge was pleased to accept the petition and granted bail to Muhammad Haroon Rashid, co- accused, by his order dated 30-7-1984. In the course of this order, it was observed:- "Learned counsel for the State submits that Muhammad Haroon Rashid, petitioner, was found innocent by Bahadur Shah, Inspector Kotwali, Muhammad Shafi, Inspector C.I.A., and Amir Aman Ullah Khan, D.S.F. Shorkot, during successive investi--gations conducted by them. The learned counsel for the State also submits that the names of Muhammad Haroon Rashid, petitioner, and Tahir, co-accused, have been placed in column No.2 of the challan. The learned counsel for the State has also read out portions of the evidence of nine witnesses recorded by the police on behalf of the defence, which tend to show that Aneesur Rehman, deceased, was murdered by Altaf, co- accused, in Chambeli Market and not at the residence of his father. Taking all circumstances into consideration, the questions whether Aneesur Rehman, deceased was murdered at the residence of Muhammad Haroon Rashid, petitioner and the petitioner also participated in the said murder with the other co-accused, are questions which call for further inquiry. The petitioner is therefore, entitled to be released on bail."
7. In this petition, Mr. Q. M. Salim, learned counsel for the petitioner, Muhammad Iftikhar Tahir, has submitted that since the co-accused Muhammad Haroon Rashid has been released on bail, the petitioner herein is also entitled to be released on bail on the principles of consistency. In this connection, he relied upon Muhammad Fazal alias Bodi v. The State 1979 SCMR 9.
8. We have perused the aforesaid judgment and found that the facts and circumstances of that case are clearly distinguishable from those obtaining in the present case. It was observed in the aforesaid case:- "We think that the petitioner should be released on bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court."
9. The above observations are of no assistance to the petitioner in the present case. In the case of Muhammad Haroon Rashid, the learned Judge had found that the counsel for the State had pointed out before him that Muhammad Haroon Rashid was found innocent by the Inspector Kotwali, the Inspector C.I.A. And the D.S.P. Shorkot during successive investigations conducted by them. He further observed that the counsel for the State has also read out portions of the evidence of nine witnesses recorded by the police on behalf of the defence, which showed that Anees-ur- Rehman was murdered by Altaf, co-accused, in Chambeli Market and not at the residence of Muhammad Haroon Rashid. He further found that the questions whether Anees-ur-Rehman deceased was murdered at the residence of Muhammad Haroon Rashid, co-accused and whether he had paticipated in the said murder with the other co-accused, were questions which called for further inquiry. Of course, he also took into consideration the circumstance that Muhammad Haroon Rashid had been placed in column No.2 of the challan. The circumstances in the case of the petitioner, except for the last mentioned circumstances are not similar. For instance, the learned Judge dealing with the present case found that it was only in the second investigation conducted by the D.S.P., Shorkot that the petitioner was found innocent; whereas in the case of Muhammad Haroon Rashid he was found innocent in three successive investigations. Again, in Haroon Rashid's case, grave doubts existed as to whether the murder of Anees-ur-Rehman had been taken place in his house or any other place (Chambeli Market) and furthermore the statements of nine P.Ws. , read out by the State Counsel him self showed that the case against the said accused was doubtful. On the other band in the present case the learned Judge who dealt with in after perusing the statements made before the police during the investigation came to the conclusion that the view of the local police that the petitioner was innocent was against the weight of evidence collected during the investigation. In this connection he noted that the of eye-witness of the to occurrences supported the prosecution case and the stamp of injuries on the petitioner negative his claim of innocence it was in these circumstances that he was not included to give mush weight to the opinion of the police officer as to the innocence or of the petitioner.
10. Qazi Muhammad Salim Advocate, however argued further that the accused could be granted benefit of doubt arising from the report of the police officers and in this connection referred to this Courts Judgment in Amir Ali and others. The State 1984 SCM R 521.
11. The observations contained in the said Judgment in our opinion do not support the plea advanced before us by the learned counsel for the petitioner. It was observed in the precedent case.
12. We feel that in this case the view expressed by the A.S.P. That the petitioners were not present at the spot is based on sufficient material. As such we are of the view that in this case the benefit of doubt arising from the A.S.P. ---s report must go to the petitioners even at the bail stage.
13. In the present case however the learned Judge, who examined the material collected by the Police during the investigation was of the opinion that the view expressed by the D.S.P. Regarding the innocence of the petitioner was not well-based. Hence, the precedent case is of no benefit to the petitioner herein.
14. The result is that there is no force in this petition which is accordingly dismissed hereby.