This order will dispose of bail petition (Criminal Miscellaneous 3027-B of 1985) filed by Haji Nazir Ahmad, M.P.A., petitioner, and bail petition (Criminal Miscellaneous 3062-B of 1985) filed by his son, Amjad Ali, petitioner, for pre-arrest bail in respect of a case instituted against them and six others under section 302/148/149, P.P.C. At Police Station Sangla Hill, District Sheikhupura, an 29-11-1985.
2. The prosecution case in brief is that on 29-11-1985 in the morning, Mumtaz Javed Chatha, complainant had gone to the railway station to receive his brother, Muslim Pervaiz Chatha, Advocate. Whilst on the way to their house, they happened to meet Muhammad Yaqoob and Nemat Ullah P.Ws. Near the Sangla Hill Octroi Post. The complainant stopped in order to chat with these two persons, whilst Muslim Pervaiz Chatha, Advocate was proceeding ahead. All of a sudden, Haji Nazir Ahmed, M.P.A., and his son Amjad Ali, petitioners, and Ghulam Muhammad alias Game, Ghulam Mujaddid alias Jaidu, Qamar alias Qamru and Nasarullah, co-accused, all armed with guns, and Muhammad Nawaz and Ghulam Mustafa, co-accused, both armed with 7 mm rifles, came out from behind a tractor trolley. Hag Nazir Ahmed, M.P.A., petitioner, raised a Lalkara exhorting that the deceased should not go alive and should be taught a lesson for firing at his house, whereupon Ghulam Muhammad alias Game, co-accused, fired at Muslim Pervaiz Chatha, Advocate, deceased, with his gun, hitting him on his chest. Thereafter, all the accused, including the two petitioners, decamped in the direction of the petitioners' house, after firing in the air. A large number of reasons were given in the F.I.R. As motivation for this murder. First, that one Ghulam Naqshband, a brother of Ghulam Mustafa, accused, was murdered in 1980, in respect of which the accused suspected Muslim Pervaiz Chatha, Advocate, deceased, and his brothers Mumtaz Javaid Chatha and Adil Chatha as responsible for the crime. Second, that one Adil Chatha, a brother of Muslim Pervaiz Chatha, Advocate, deceased, was murdered in 1982, in respect of which Ghulam Mustafa and Muhammad Nawaz, accused, and five others were challaned and tried by the Military Court, but acquitted. Third, that Hag Nazir Ahmed, M.P.A., petitioner, protected proclaimed offenders and other criminals in his area, in respect of which not words were exchanged by the deceased with the petitioner a few days before the occurrence. Fourth, that Hap Nazir Ahmed, M.P.A., petitioner, had defeated Rana Fazalur Rehman's, Advocate, Muhammad Nawaz Bhatti, Advocate, and Sheikh Ghulam Jilani, Councillor, in the Provincial Assembly elections and since the complainant party supported the opponents of the petitioner, the petitioner had wreaked vengeance on the deceased.
3. On behalf of the petitioners it is submitted that both had come to Lahore in the afternoon on 28- 11-1985, as Haji Nazir Ahmed, M.P.A., petitioner had to see the Chief Minister, Punjab, Lahore, at his residence, alongwith two others M.P.As, on 29-11-1985 at 7-45 a.m. And that Hag Nazir Ahmed, M.P.A., petitioner, had gone to see the Chief Minister in his car, which was driven by his son, Amjad Ali, petitioner, and that he had seen the said Chief Minister alongwith M.P.As and one Zafar Piami, a senior journalist of daily 'Jang', for one hour and then along with Rai Ahmed Saeed M.P.A., Zafar Piami. Journalist, his son Amjad Ali and Dr. S.F. Morton, ex-Councillor, Sangla Hill, had gone to the Airport at 9-DO a.m. To receive Imam-e-Kaaba, Imam Harmain Sharifan, where they had also met Afzaal Ali Shah, Health Minister, and others. It is further submitted that Muslim Pervaiz Chatha, Advocate, deceased, Mumtaz Javaid Chatha, complainant and the late Adil Chatha, constituted one group and Ghulam Mustafa and Ghulam Mujaddid, co-accused, and the late Ghulam Naqshband, constituted the other group; that the members cloth these groups happened to be the sons of two real brothers, namely, Mahboob Hussain and Mushtaq Hussain respectively; that both these groups had been involved in political rivalry for some time; and that since the latter group has supported Hag Nazir Ahmed, M.P.A , petitioner the complainant has maliciously involved the two-petitioners in this case. It is next contended that no overt act has been, attributed to the petitioners, other than a proverbial Lalkara to one of them and that none fired at or killed the deceased. It is also urged that on 28-11-1985, one day before the occurrence, the petitioner and the deceased had entered into a written agreement compromising all their differences, as per "Zamanat Name" lodged with the petition and that it is unreasonable to imagine that the petitioners the very next day would involve themselves in the murder of the deceased. It is further urged that over thirty affidavits have been filed by the respectables of Sangla Hill confirming that on the relevant date and time the petitioners were not in that town. It is lastly submitted that since the deceased was an Advocate, the whole Bar of Sangla Hill and of District Sheikhupura had passed various resolutions condemning the petitioners and had tried to bring pressure on the administration by trying to thwart the investigation and to compel the police to effect arrest, so as to harass and unduly humiliate the petitioners in public, with the result that they had to move the High Court direct for pre-arrest bail.
4. On behalf of the respondents it is submitted that thirty-three affidavits have been filed on behalf of the complainant party before the Investigating Officer to show that the petitioners were present in Sangla Hill and that on the principle laid down in Iqbalur Rehman's v. The State PLD 1974 SC 83, the matter being one disputed on either side, the petitioners were not entitled to bail. It is further submitted that Muhammad Yaqoob and Nemat Ullah P.Ws, are independent witnesses, who have inculpated the petitioners and that the question of alibi should be left to the trial Court to decide and should not constitute the basis on which they should be6 released on bail. It is next 'contended that Hag Nazir Ahmed, petitioner, as the leader of the opposing group of Chathas, had long- standing enmity with the complainant group, which was also obvious from the compromise deed, dated 28-11-1985 lodged by the learned counsel for the petitioners in Court and the admissions in that behalf made by the petitioners themselves in their petition. In this view of the matter, it is submitted that the petitioner's involvement could not be excluded. It is also submitted that if the petitioners had to be falsely involved, more serious rolls could have been given to them, which was not done. Lastly, it is submitted, on the principle laid down by the Supreme Court in Murad Khan's case PLD 1983 SC 82, that unless it can be shown that there was motivation of the police to injure the reputation and liberty of the petitioners on political considerations, which was not so in this case, bail should not be allowed.
5. Mr. Khalil Ramday, Additional Advocate-General, who appears for the State, submits that Mr. Ghulam Rasool Qureshi, Superintendent of Police, Crimes Branch, has found support for the alibi of the petitioners, on the basis of investigation conducted by him. It is submitted that the statements of Muhammad Nazir, Watch and Ward Assistant, and of Muhammad Ashraf F.C., on duty at the gate of Peoples House, Lahore clearly show that on 28-11-1985 at 15-05 hours, Hag Nazir Ahmed, M.P.A., petitioner, with four others, entered the Peoples House in Car No. LHK-77, in order to occupy Room B-3, which was booked in the name of Rai Ahmed Saeed, M.P.A., and that the said petitioners and others left the Peoples House in the said car on 29-11-1985 at 06-50 hours. The visit of Haji Nazir Ahmed, petitioner, to the house of the Chief Minister, Punjab, Lahore, on 29-11-1985 in the early hours of the morning, stands confirmed by the statements of Rai Ahmed Saeed, M.P.A., Mien Fazal-e-Haq, M.P.A., who were with the petitioners at that time, and by the statement of Muhammad Iqbal, F. C.
Who was on duty outside the Chief Minister's house at that time. The presence of the petitioners at the airport on 29-11-1985 at 9-00 a.m. Stands confirmed by the statement of Syed Afzaal Shah, Minister of Health, who was present at the Airport at that time. The statements of the other defence witnesses is still to be recorded. It is also submitted that of the thirty-three affidavits which were filed on behalf of the complainant party in support of their case, only ten persons had appeared before the Superintendent of Police, Crimes Branch, of whom one had resiled from his affidavit. As regards the remaining nine persons, it is stated that they happen to be the councillors who are politically opposed to Hap Nazir Ahmad, M.P.A., petitioner.
6. I have given my anxious consideration to this case. The distance from Sangla Hill to Lahore is 70- 75 miles. Evidence supporting the plea of alibi, as submitted by the petitioners and referred to in para. 3 above, finds support from persons whose statements have been recorded, as submitted in para. 5 above, by Mr. Ghulam Rasool Qureshi, Superin--tendent of Police, Crimes Branch. It is admitted by both sides that there is long-standing enmity between the two groups of persons, in one of which the petitioners fall and in the other, the complainant and his brothers. The false implication of the petitioners is a possibility, due to their political rivalry. Without going on the record as having given any finding in the matter, I would only say, for the limited purposes of this bail petition, that the plea of alibi in this case is supported by a large number of persons, including some members and a Minister of the Provincial Assembly and some members of the Local Councils and as such would require serious consideration and, therefore, the question whether the petitioners were present and, if so, did participate, in the manner as alleged, calls for further inquiry.-In this view of the matter, ex facie there appear no reasonable grounds for A believing that the petitioners are guilty of the offences presently imputed to them. Since the petitioners prima facie appear to be apprehending their arrest on account of ulterior motives, so that at least one o them, who is a member of the Punjab Provincial Assembly, can be ha assed and unduly humiliated in public and his political image tarnished, they are entitled to pre-arrest bail. See: Muhammad Shafiq's case 1982 SCMR 384, Muhammad Azam's case 1980 SCMR 269 and Sardar Muhammad's case 1977 SCMR 326.
7. For the foregoing reasons, both the petitions are accepted and the interim pre-arrest bails previously granted to the petitioners on 4-12-1985 and 9-12-1985, are hereby confirmed.