The occurrence in this case took place at 7-45 a.m. On 19- 7- 1986 near Bus Stand Joharabad, Shaukat Ali Khan S.I. On hearing the occurrence went to the spot where Muhammad Hazar complainant made statement before him at 8-30 a.m. On the basis of which formal F.I.R. Was recorded at the police station, about 4 furlongs from the place of occurrence, at about 8-40 a.m.
On 19- 7- 1986. It was stated by Muhammad Hazar complainant in his F.I.R. That about one year earlier he had abducted Mst. Kaniza daughter of Muhammad Nawaz. A case was registered against him and two other persons. On 19-7-1986 he along with Noor Muhammad. Muhammad Ali, Dhuman Khan, Fateh Ali, Ahmad Sher, Muhammad Shafi, Falak Sher and Muhammad Nawaz came to Joharabad in order to attend hearing of the said abduction case in the Court of Sessions Judge.
They got down at the Bus Stand Joharabad at about 7-45 a.m. And started proceeding towards the Courts. When they reached near Noorani Mosque Chowk, all of a sudden Muhammad Amir, Muhammad Nawaz armed with guns came out from western side and shouted Lalkaras.
Simultaneously from the eastern side of the road Muhammad Iqbal, Sarfraz, Gulbaz, Dilbaz, Umar Daraz, Ahmad Sher, Shamsher and Muhammad Mumtaz armed with guns came out of Bhatti Sweet Shop. Muhammad Nawaz fired the first shot which hit Dhuman Khan. The second shot was fired by Muhammad Iqbal which struck Muhammad Ali. The third fire by Muhammad Amir hit Fateh Ali. The fourth fire by Sarfraz hit Noor Muhammad. The fire by Gulbaz hit Dhuman whereafter Dilbaz and Sarfraz fired at Fateh Ali who was hit. Umar Daraz fired at Muhammad Ali, who received injury on his head. The fires by Ahmad Sher, Shamsher and Mumtaz hit Noor Muhammad. After this Muhammad Amir fired at Muhammad Hazar complainant who got injury on his bicep. At this time Muhammad Hazar P.W. Was able to snatch gun from) Muhammad Amir accused. Thereafter: Gulbaz accused fired at Ahmad Sher P.W. Who received injury on his left hand. Ahmad Sher P.W.
Succeeded in snatching gun from Gulbaz. The accused after recklessly firing at the injured ran towards east. As a result of the firing by the accused, Dhuman Khan, Fateh Ali, Noor Muhammad and Muhammad Ali died apt the spot while Muhammad Hazar complainant and Ahmad Sher P.W.s. Got fire-arm injuries on their persons. Ghulam Muhammad a passerby also received gun fire injuries during the occurrence. The S.H.O. Shaukat Ali reached the spot. He recorded statement of the complainant who also produced the guns snatched by them from the accused before the S.H.O. The police undertook investigation.
The accused were arrested. Muhammad Nawaz accused was allowed bail by this Court in Crl. Misc.
3023-B of 1986 because he was found to be in judicial lock up Jhang at the alleged time of occurrence.
2. Dilbaz, Muhammad Mumtaz, Umar Daraz and Sarfraz filed Crl. Misc. 1493-B of 1987 while Ahmed Sher and Shamsher filed Crl. Misc. No. 1882-B of 1987 for their bail. These two petitions arise out of one F.I.R: I, therefore, propose to decide them together by this order.
3. The learned counsel for the petitioners in both the petitions did not address arguments on merits.
He pressed these petitions only on the ground that the six petitioners were found innocent by the police during investigation and have been placed in column No. 2 of the challan. It was, therefore, argued that they be admitted to bail till completion of the trial. These petitions have been opposed by learned counsel for the complainant and the State.
4. I have carefully examined the case diary of the case. Sarfraz accused was arrested on 21-7-1986.
Muhammad Nawaz son of Noor Muhammad accused was formally arrested from District Jail, Jhang on 21-7-1986. The remaining 8 accused were arrested on 20-7-1986. In case diary No. 7, dated 25-7-1986 it is recorded that Muhammad Iqbal accused admitted to have joined the present occurrence. In diary No. 8, dated 25-7-1986 it is recorded that Muhammad Nawaz son of Noor accused denied his presence at the spot but admitted having conspired the assault on complainant party. On that date the statements of Muhammad Nawaz son of Ali Muhammad and Muhammad Nawaz son of Muhammad Hayat were also recorded. These two witnesses were not named in F.I.R. They both supported the prosecution case. On 28-7- 1986 S.I. Shaukat Ali recorded case diary No. 10. It indicates that Azmat Ullah etc. Stated that on the evening preceding the occurrence they were present at the Dera of Mumtaz to purchase buffalo and that Mumtaz accused was innocent. Haitam Khan and others stated that at about 7/8 a.m. They were present at the shop of Ahmad Sher accused to make purchases where they learnt about the present occurrence, At that time Ahmad Sher was present at the shop. Zafar Iqbal stated that his daughter died 3/4 days before this occurrence and that on the day of occurrence Shamsher accused came to his house to offer condolence. Muhammad Afzal and others stated that at the alleged time of occurrence they were present in the fields of Umar Daraz accused for Munji sowing and that Umar Daraz was also present there. Mansab etc. Stated that at the alleged time of occurrence they were present in the field of Sarfraz 1ccused for sowing Munji. At that time Sarfraz accused was also present there. The next relevant case diary No. 19 was recorded by Mr. Shafi Salim D.S.P. On 2-4- 1987. All the persons who had appeared before S.I. Shaukat Ali on 28-7-1986 (Case diary No.10) appeared before Shafi Salim D.S.P. He recorded the statements of some of those persons and adjourned the proceedings to 25-4-1987. The title of case diary No. 20 indicate 25-4-1987 as the date but against para. No. 1 of this case diary the date is given as 25-5-1987. At the close of this diary the date 25-4-1987 appears with the signatures ofthe D.S.P. Mr. Shafi Salim D.S.P. In para. No. 15 of diary No. 20 opined that in view of the defence evidence there appears some doubt about the presence of Umar Daraz, Shamsher, Ahmad Sher, Mumtaz, Sarfraz, Dilbaz and Iqbal at the alleged time of occurrence; that the eye-witnesses are consistent in their statements and they fully implicate all the accused in this case and that twenty persons present on behalf of the complainant party are even prepared to make statement on oath. In view of this situation the D.S.P.
Held the view that the defence evidence being NOT strong, no one of the accused be placed in column No. 2 of the challan. He concluded with a direction that all the ten accused should be challaned. It appears that the police file was placed before S.P., Sargodha who recorded his observations. The file was again taken up by Mr. Shafi Salim, D.S.P. In case diary No. 21, dated 23-5- 1987 he observed that the accused party has stated that the complainant be asked to produce any Chairman Union Council, any Advocate or any Imam Masjid to state on oath about their guilt and that the complainant party has failed to produce any such evidence. As such he concluded that Muhammad Nawaz, Muhammad Amir and Gulbaz accused were guilty and be placed in column No. 3 while the remaining accused namely Muhammad Iqbal, Sarfraz, Dilbaz, Umar Daraz, Ahmad Sher, Shamsher and Muhammad Mumtaz, being innocent, be placed in column No. 2 of the challan.
On a perusal of the police diary I am of the view that the opinion of the police in declaring the above seven persons innocent is not based on sound material. Muhammad Nawaz son of Noor Muhammad accused was admittedly found to be in judicial lock up District Jail, Jhang at the alleged time of occurrence but in spite of that he was found guilty and placed in column No. 3 of the challan. Muhammad Iqbal accused in case diary No. 7 dated 25-7-1986 admitted to have joined the present occurrence. He did not produce any evidence in defence but in spite of that he was declared innocent and directed to be placed in column No. 2 of the challan. The evidence produced by Muhammad Mumtaz accused does not pertain to the time of the present occurrence.
It was stated by Azmat Ullah etc. Defence witnesses that they were present with Mumtaz on the evening preceding the day of occurrence. The defence evidence led by other accused was oral.
The place of residence of all the accused is not at much distance from the place of occurrence. I am, therefore, not inclined to place any reliance, for purposes of these petitions, on the opinion of the police. The occurrence in this case took place near Bus Stand Joharabad at 7-45 a.m. On 19-7- 1986. The matter was reported to the police in about 45 minutes and the case was registered in about 55 minutes of the occurrence. All the accused were named in the F.I.R. Three of the eye- witnesses were injured. Specific role has been ascribed to all the accused who prima facie had motive to launch an attack on the complainant party. Four persons were killed and three eye- witnesses were injured by the gun fires. It is a case of serious nature. In my view the opinion of the investigating officer in declaring the present six petitioners innocent was not bona fide. In Waqar- ul-Haq v. The State 1985 SCM R 974 Waqar-ul-Haq accused had pressed bail on plea of alibi and secondly on the opinion of the investigating officer as to his innocence. It was held by their Lordships of Supreme Court that the opinion of Investigating Officer as to petitioner's innocence not being bona fide, cannot influence the mind of Court. It was held in Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 that accused could not be released on bail on ground of further enquiry without a finding that there are no reasonable grounds for believing that the accused had committed a non-bailable offence. In view of the above discussion I am of the view that the opinion of the police as to innocence of accused-petitioners was riot bona fide or based on sound material. It cannot, therefore, be said that prima facie the accused are not guilty for the offence with which they have been charged. I, therefore, find no merit in these petitions which are accordingly dismissed.
5. Any observation on facts will have no bearing on merits of the case during trial. The observations on facts in this order are only meant for decision of these two bail applications. The learned trial Judge will come to his own conclusion after recording evidence during trial.