This order shall dispose of the two bail petitions, namely, Criminal Miscellaneous No. 651-B of 1984 filed by Muhammad Azim and Criminal Miscellaneous No. 652-B of 1984 filed by Javaid and Sher Muhammad, as they arise out of the Additional Sessions Judge's order, dated 31-5-1984 refusing bail to them.
2. According to the prosecution, Muhammad Akbar (complainant) and his two brothers, namely, Muhammad Asghar (injured P.W.) and Muhammad Aslam (deceased), the hides merchants of Bahawalpur, despatched a consignment on 30-12-1983 to Multan under the care of their servant Muhammad Ashiq in Truck No. 2695/FDE driven by Ghulam Sarwar P.W. The truck was stopped by Muhammad Azim, petitioner and his companions at the check-post near Humera Hotel in the outskirts of Bahawalpur and demanded export tax from them (for taxing their goods out of Bahawalpur). Instead of paying the tax Muhammad Ashiq leaving the truck there went back and informed his employers about it whereupon Muhammad Akbar (complainant), Muhammad Asghar (P.W.), Muhammad Aslam (deceased) and their neighbour Muhammad Afzal Rahi (P.W.) reached there in their Suzuki Pick-up No. 6386/BRA and protested against the unjustified detention of their truck because the export tax had not yet been legally imposed. After a breezy encounter Muhammad Asghar and Muhammad Afzal Rahi got into their Suzuki Pick-up and started for Multan and the truck followed them with 4juhammad Akbar, Muhammad Aslam and Muhammad Ashiq on its board without paying the tax. Muhammad Azim, petitioner, declared that he would not let them reach Multan. It is alleged that at about 10 p.m. The petitioners chased in Toyota Pick-up No. 9565/MNF and overtook the complainant party a mile beyond Lodhran towards Multan. They struck the side of their Pick-up with the complainant's Pick-up as a result of which it went of the road and turned turtle. The petitioners then parked their vehicle in the middle of the road and blocked it. The complainant stopped the truck along the road without switching of its engine and the headlights.
In the meantime, Muhammad Asghar and Muhammad' Afzal Rahi P.Ws. Managed to come out of the accidental Pick-up themselves. As soon as they came on the road Muhammad Azim, petitioner, armed with revolver, Javaid and Sher Muhammad empty-handed advanced towards them. Sher Muhammad allegedly raised Lalkara that they (complainant-party) should be taught lesson for taking away their truck whereupon Muhammad Azim fired two shots from his revolver hitting Muhammad Aslam in the front of his neck and Muhammad Asghar on his collar bone. The petitioners then ran away leaving their Toyota Pick-up at the spot. Muhammad Akbar removed both the injures to Bahawalpur hospital where Muhammad Aslam died shortly afterwards and Muhammad Asghar was admitted for treatment. After this Muhammad Akbar went to Police Station Lodhran about 10/12 miles away from Bahawalpur and lodged the report.
3. The Investigating Officer seized Truck No. 2695/FDE loaded with hides, Suzuki Pick-up No. 6386/BRA of the complainant and Toyota Pick-up No. 9565/MNF left by the petitioners in damaged condition from the spot same night. A photograph of Javaid, petitioner, and a printed receipt book of 'Export Tax District Council, Bahawalpur' were found in the Toyota Pick-up. This Pick-up is registered in the name of one Gulistan Khan whose address is shown as C/o Muhammad Khan of Multan'. Muhammad Khan claimed to be the owner of this vehicle and had let it on hire to Amir Sultan contractor. According to him, Javaid, petitioner is his driver on this Pick-up.
4. Muhammad Azim and Javaid, petitioners, were arrested on 8-1-1984 and Sher Muhammad on 20-3-1984. An unlicensed revolver was recovered from Muhammad Azim at the time of his arrest.
5. Muhammad Azim, petitioner on 13-2-1984 i.e. a month after arrest, raised plea of alibi saying that on 30-12-1984 he attended Khatna ceremony of the son of Muhammad Hussain Taragg in Chak No. 34/12-L, Tehsil Khanewal, and remained there from 5 p.m. To 10 p.m. His brother Muhammad Zeman, a Councillor, also appeared in his defence. On 3-3-1984 five persons of his Chak appeared before Additional Superintendent of police (Mr. Wasim Kausar) and stated that Muhammad Azim was seen by them in the 'Khatna' ceremony from 5 p.m. To 1 a.m. (mid-night) on the day of occurrence. In his report, dated 19-4-1984 the Additional Superintendent of Police concluded that Muhammad Azim, petitioner had not taken part in the occurrence because he was present in Chak No. 34/12-L at the time of occurrence in view of the statements of Muhammad Hussain Taragg. Sufi Abdul Rehman's Dhol Jet, Malik Wasim Jet Bati, Muhammad Aslam, Lambardar and Ghulam Muhammad, Barber; that the persons who lived near the place of occurrence had seen only two persons running away from the spot; and that the presence of Muhammad Azim in the quarrel which took place near the toll-tax of camp prior to the main occurrence has not been proved. He, therefore, directed the Station House Officer to place Muhammad Azim in column No. 2 while Javaid and Sher Muhammad in column No. 3 of the challan. Learned Ilaqa Magistrate in his sending up order, dated 19-6-1984 observed that in an earlier incomplete challan submitted to the Court by Rana Bashir Ahmed, Station House Officer on 22-1-1984. Muhammad Azim, petitioner, was not shown in column No. 2. By this he meant that, according to the Station House Officer, Muhammad Azim was guilty.
6. Learned counsel appearing on behalf of the petitioners submitted that Muhammad Azim, petitioner, has been falsely implicated in this case. He produced copies of a civil suit and stay application purported to have been filed by Amir Sultan against District Council, Bahawalpur to show that Amir Sultan is the contractor of District Council, Bahawalpur for collecting the 'export tax' and not Muhammad Azim, petitioner, as alleged in the F.I.R. He, therefore, contended that there being no interest of the petitioner in the collection of export tax the story about his demanding the tax from the complainant-party or refusal to pay the same by the complainant impelled the petitioner to chase and attack them, is false. He further submitted that blood collected front the place of occurrence has not been found to be of human origin, therefore, the place where the occurrence according to the prosecution took place has become doubtful. It is also submitted that the revolver allegedly recovered from Muhammad Azim, petitioner, is not in any manner connected with the crime inasmuch as neither any empty had been recovered from the spot nor the fire-arms expert reported as to when the revolver was last fired. Further contended that numerous persons during the investigation appeared to prove that Muhammad Azim was present at the relevant time in Chak No. 34/12-L, Tehsil Khanewal, some 50 miles away from the scene of offence and a police officer of the rank of Additional Superintendent of Police has found him innocent, therefore, he is entitled to be released on bail. Relying on a number of authorities learned counsel submitted that opinion of police officer declaring an accused person as innocent during the investi--gator, carries sufficient weight and quite often the superior Courts have granted bail to such accused even in the cases of very serious nature. As for Javaid and Sher Muhammad, petitioners, it is contended that admitted they were empty-handed at the time of occurrence and a proverbial Lalkara has been alleged against Sher Muhammad. Since no active role in the occurrence has been attributed to them therefore, provisions of section 34, P.P.C. Are not attracted, submitted tilt learned counsel.
7. Learned State counsel assisted by learned counsel for the complainant strenuously resisted the grant of bail to the petitioners saying that the parties: being already known to each other, there was no possibility of the P.Ws. Committing mistake in identifying the assailants, Next contended that there is overwhelming evidence showing that the petitioners were seen quarrelling with the complainant-party an hour or two before the occurrence over the payment of export-tax and.
Therefore, plea of alibi raised by Muhammad Azim is of no avail to him at this stage specially when the witnesses of alibi appeared in the investigation some two months after the occurrence. It is further stated that the ocular evidence supported by the recovery of Toyota Pick-up No. 9565/MNF from the spot which was left by the petitioner there provide reasonable grounds to believe that the petitioners committed the offence of murder. As for complicity of Javaid and Sher Muhammad, petitioners, it is submitted that, no doubt, they were empty-handed but the fact that they accompanied the main accused Muhammad Azim from Bahawalpur to the place of occurrence about 12 miles away, clearly manifests that they shared common intention with him. Finally, it is urged that Investigating Officer's opinion with regard to innocence of an accused in this case carries little weight for it is not based on sound reasons.
8. I have carefully considered the facts and circumstances of this case in the light of abovenoted arguments.
9. The F.I.R. In this case has been lodged after 1; hours of the occurrence which cannot be called a belated report in the circumstances as the complainant had first removed his seriously injured two brothers to Bahawalpur hospital and thereafter he went to Lodhran police without any further loss of time. The presence of injured P.W. Muhammad Asghar at the spot cannot be doubted. He has clearly implicated Muhammad Azim, petitioner, to have fired at him as well as at his deceased brother Muhammad Aslam. On being asked by me, Mr. Ali Ahmed Awan, learned counsel for the petitioners, failed to show, if the eye-witness, namely, Ghulam Sarwar (truck driver). Muhammad Akbar, Muhammad Ashiq and Muhammad Afzal Rahi had personal axe to grind by falsely implicating the petitioners. The quarrel between the parties over the payment of export tax for transporting the animal skin out of Bahawalpur an hour or two before the occurrence as stated by owner of Highway Hotel, namely, Shamsuddin and the recovery of truck loaded with hides and skins alongwith the Suzuki Pick-up belonging to the complainant and Toyota Pick-up of the petitioners from the Spot prima facie fix the place of occurrence, establish the motive and also connect the petitioners with the crime.
10. The argument that Amir Sultan is the contractor and Muhammad Azim having no concern with it was not expected to demand the tax from the complainant-party or quarrel with them is misconceived --the simple reason that Azim's real brother Muhammad Zaman a Councillor, has stated that they had obtained the contract for Rs. 76.000 in, the name of Amir Sultan which means that he is the Benami contractor, therefore, the interest of Muhammad Azim, petitioner in the contract is more than clear.
11. Learned counsel for the petitioners mainly banked on the finding of Additional Superintendent of Police whereby he declared Muhammad Azim, petitioner, as innocent relying on the statements of persons belonging to petitioner's Chak. It is well-settled that such opinion though inadmissible does carry some weight provided it is based on sufficient material and sound reasons. I have carefully gone through the Zimni, dated 19-4-1984 wherein the Additional Superintendent of Police has expressed about the innocence of Muhammad Azim, petitioner. It is noteworthy that the conclusion of the Additional Superintendent of Police that the persons residing close to the place of murder saw two persons running away from the spot is not based on any material much-less admissible evidence. Likewise, his another finding that Muhammad Azim's participation in the initial quarrel with the complainant-party over the demand of export tax from them, too, is not supported by any independent evidence. To the contrary, it appears that Additional Superintendent Police has conveniently ignored the statement of Shamsuddin, owner of Highway Hotel and Sh. Muhammad Safdar, Contractor of Toll Tax of Sutlej Bridge on the point. As for the evidence of the residents of Chak No. 34112-L about Muhammad Azim's participation in the Khatra ceremony from 5 p.m. To 1 a.m. Mid-night on 30-12-1983, suffice it to say that it is not in keeping with Muhammad Azim's own stand, that is that he west to the house of Muhammad Hussain Taragg on 30-12-1983 at 819 a.m.
And remained there till 10 p.m. Again, according to Muhammad Azim, he had partici--pated in the Khatna ceremony of the son of Muhammad Hussain Taragg, but Muhammad Hussain Taragg stated that it was the Khatna ceremony of his grandson Muhammad Asad, Muhammad Asad's father, however, has not appeared to support this fact. The strange aspect of the report of the Additional Superintendent of Police is that he simply opined that Muhammad Azim was not present at the time of occurrence and failed to record his finding as to how the occurrence took place and who according to him participated, what role each of them played and who was responsible for firing at Muhammad Aslam (deceased) and Muhammad Asghar (P.W.). In his report, neither he disbelieved the prosecution witnesses nor did he express that involvement of Muhammad Azim by the witnesses is mala fide. He gave no reasons why he preferred the defence witness (who appeared two months after the occurrence) over the eye-witnesses particularly, Muhammad Asghar, injured P.W. Ghulam Sarwar, truck driver, whose truck was found parked at the place of occurrence. He absolutely did not take into consideration the fact of recovery of Toyota Pick-up No. 9565/MNF from the spot. In short, the finding of the Additional Superintendent of Police to my mind, is not in keeping with material on record and is rather whimsical.
12. In the light of material discussed above, I am clearly of the view that there exist reasonable grounds to believe that Muhammad Azim, petitioner, has been guilty of an offence punishable with death or imprisonment for life and is, therefore, not entitled to be released on bail. His petition (Criminal Miscellaneous No. 651-13 of 1984) is, therefore, dismissed.
13. So far Javaid and Sher Muhammad, petitioners, are concerned it may be stated that they have not denied their presence at the place of occurrence. The question arises that can they be taken to be having common intention of murdering Muhammad Aslam, for, they war admittedly empty- handed and played no active role whatsoever at the relevant time. Javaid being driver of the Pick- up was under duty obey and take his employer in Toyota Pick-up to a place he was ordered and, therefore, It is yet to be established that while taking Muhammad Azim to the spot he knew that Muhammad Azim would fire at and kill Muhammad Aslam (deceased). Likewise, it needs further inquiry that by exhorting Muhammad Azim that he should teach a lesson to the, complainant for taking away the truck, Sher Muhammad petitioner meant that Muhammad Azim should 'fire at them' or 'kill them'. In the circumstances, I feel inclined to allow this petition (Criminal Miscellaneous No. 652-B of 1984) and direct that Javaid and Sher Muhammad, petitioners, be released on bail subject to their furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only), with one surety in like amount each to the satisfaction of trial Court.