Criminal Miscellaneous No. 2780-B of 1985 has been moved by Ahmad Hayat son of Basharat Hayat, while Criminal Miscellaneous No. 2982-B of 1985 has been moved by Hamid Ali and Faqir Hussain, for grant of bail in case F.I.R. No. 44/85, dated 14-2-1985, Police Station Hafizabad. District Gujranwala, under section 302/148/149/109, P.P.C. As both the petitions pertain to the same case, they are being disposed of by one order.
2. According to the F. I. R., which was recorded at the instance of Haroon Rashid, father of Asif Hayat deceased, Mussarat Hayat armed with a carbine and Afzal Husain Tarar also armed with a fire- arm accompanied by three unknown persons had launched an attack on Asir Hayat at 9 a.m. Near the shop of Fazal Ahmad Tarar. On the Lalkara raised by Afzal Husain, the shot fired by Mussarat Hayat had struck Asif Hayat on the chest, as a result of which he fell down. Afzal Hussain also fired a shot which, however, did not hit Asif Hayat, but struck an iron drum lying nearby. Second shot fired by Mussarat Hayat had also not hit the deceased. All the accused thereafter left the place of occurrence in a motor car raising Lalkaras and firing shots.
The occurrence, in addition to the complainant was witnessed by Rafaqat Hayat, Akhtar, Sibtain and Nusratullah.
The occurrence was the result of jealousies of election, in that Hap Jamshed Abbas, brother of the deceased, who was a candidate for the Provincial Assembly, was leading against others, which had made the accused party unhappy.
Towards the end of the F.I.R., it has been stated that the whole plan for the murder of Asif Hayat was manipulated and master--minded by Ahmad Hayat (petitioner).
3. As is apparent from the F.I.R. No allegation has been levelled against Ahmad Hayat of having participated in the occurrence at the spot, and the names of Hamid Ali and Faqir Husain petitioners do not appear in the F.I.R. According to the learned Assistant Advocate General the police officer during investigation had recorded statements of Akhtar Hussain and Sh. Bashir Ahmad on 24-7- 1985. Akhtar Husain had stated that Ahmad Hayat had asked Javed son of Rehmat Ali, Faqir Husain, Mussarat Hayat, Hamid Machhi, Sh. Bashir and himself to murder Asif Hayat and while doing so had distributed carbines as well. He further stated that he and Sh. Bashir had refused to be a party in that venture, as a result of which both of them were threatened to keep their mouths shut.
Statement of Sh. Bashir Ahmad was also recorded on the same day, wherein he made similar statement except that instead of naming Javed son of Rehmat Ali, he had named Hamid Ali son of Rehmat Ali.
Both had also stated that they had informed Jamshed Hayat, brother of the deceased, and he had taken them to A.S.P. Hafizabad and had made a complaint to him, but the A.S.P. Did not take any action.
Statement of Jamshed Hayat was recorded in this regard on 25-3-1985.
Statements of Muslim Hayat and Shujat Hayat were recorded on 3Q-3-1985. Both of them stated that they had witnessed the occurrence on 14-2-1985 and had identified Faqir Husain and Hamid Ali on the spot armed with carbines.
4. Learned counsel for the petitioners contended that only, bare allegation has been levelled in the F.I.R. That the murder was committed at the instance of Ahmad Hayat petitioner and no details of evidence are given therein. According to-him, if Sh. Bashir and Akhtar Husain had informed Jamshed Hayat, brother of the deceased and son of the complainant, about the plan prior to the commission of the murder, he must have mentioned this fact to his father as well and had that been so this would have been stated in the F.I.R. Learned counsel contended that the fact of the statements of the two witnesses having been recorded some five months after the occurrence shows that the statements were not genuinely made but were procured.
While arguing the case of Hamid Ali and Faqir Husain petitioners, learned counsel contended that no identification parade was held and the only evidence collected against them, is the statements of Muslim Hayat and Shujat Hayat about their participation in the occurrence, which were recorded one and a half months after the occurrence. Learned counsel submitted that the evidence of their having been members of the conspiracy is not worth reliance. Lastly, counsel contended that even if this evidence be considered worth anything, no allegation has been levelled against them of having fired any shot at the spot.
5. Learned Assistant Advocate-General contended that the name of Ahmad Hayat petitioner has been mentioned in the F.I.R, that the evidence of conspiracy hatched by him has been collected and the worth of the same will have to be seen at the trial.
About the participation of Hamid Ali and Faqir Husain petitioners in the occurrence, learned Assistant Advocate-General argued that apart from the evidence of their having entered into conspiracy, statements of two witnesses who had identified them at the spot has also been recorded, which connects them with the crime.
6. I have gone through the F.I.R. And have considered the contentions raised by learned counsel for the parties.
The important piece of evidence, in so far as it relates to Ahmad Hayat petitioner, is evidence of Sh.
Bashir Ahmad and Akhtar Husain, Apart from the fact that their statements were recorded after more than five months of the occurrence, the other important element is, that, had the fact of their having informed Jamshed Hayat, brother of the deceased, and of his having taken them to A.S.P., been correct, the same would have been mentioned in the F.I.R., as this fact would have come to the notice of the complainant, who is father of Jamshed Hayat and deceased. But the factual position is, that this fact does not find mentioned in the F.I.R. The statement of A.S.P. Was never recorded: First time this fact was disclosed by Jamshed Rayat, after one month of the registration of the F.I. R.
The argument of the learned counsel for the petitioners that Ahmad Hayat was involved, in this case for the reason that he had lodged F.I.R. Against the complainant, Jamshed Hayat and the deceased, for the murder of his brother Manzar Hayat, which was pending trial at the time of occurrence, seems to possess substance, particularly, in view of the fact that the complainant have not mentioned this fact in the F.1.R.
7. Keeping in view the fact that the evidence of conspiracy has not been mentioned in the F.I.R and the statements of the two witnesses who have deposed about the conspiracy, were recorded some five months after the occurrence and also considering the fact that the parties p were inimical to each other prior to the occurrence and the petitioner (Ahmad Hayat) is in jail since a year, I feel inclined to exercise my discretion in favour of Ahmad Hayat petitioner. He shall be released on bail on his furnishing a bail bond in the sum of Ps.25,000, with two sureties, each in the like amount, to the satisfaction of Assistant Commissioner, Hafizabad.
The case of Faqir Husain and Hamid Ali petitioners is also apparently on better footing than Ahmad Hayat, in that, not only their names do not appear in the F.I.R., the names of the two witnesses B who claimed to have seen them at the spot, are not mentioned in the F.I.R. Their statements were recorded one and a hall months after the occurrence. The evidence of their having received arms- at the hand of Ahmad Hayat also requires further inquiry.
8. It may be of interest to mention here that Afzal Hayat co-accused of the petitioners, who according to the F.I.R. , participated in the occurrence and had fired at the deceased, was declared innocent during investigation and has been released on bail.