1. This is a petition for bail after arrest in a case of murder on behalf of two out of the seven accused persons mentioned in the initial report lodged by Muhammad Ashraf complainant at Police Station Naulakha on the 16th April 1972, in regard to the murder of his near relation Zahid Butt deceased.
2. The com--plainant who is present in person specifically named in the F. I. R. The two petitioners as also five others namely, Ghazanfar Ali, Anwar Saeed, Muhammad Amin, Khalid Saeed and Naheed Akhtar of whom the latter is still at large. In the course of investigation, it appears that before the police Ghazanfar Ali, Muhammad Amin, Anwar Saeed and Khalid Saeed raised the pleas of alibi and led evidence in support thereof on the basis of which they have not only been placed in Column No. 2 but have also been released on bail. Significantly enough balls were accept--ed by the police on their behalf after their petition for pre-arrest bail had been dismissed by the learned Sessions Judge vide his order dated 22-4-1972 as stated by Muhammad Ashraf and non--bailable warrants .For their arrest had been issued.
3. A peraual of the report under section 173, Cr. P. C. Shows that the present petitioners and Naheed the proclaimed offender have been found by the police to be the real culprits being responsible for the murder of Zahid Butt, although in the initial report a comparatively lesser role has been attributed to them by the complainant.
4. In support of the petition learned counsel for the petitioner contends firstly, that the principal accused in this case Khalid Saeed to whom the fatal injury with knife was attributed has been found innocent. It is further submitted that similarly the plea of alibi raised by Ghazanfar Ali and accepted by the Investigating Officer on the basis of the statement of as many as three Members of the National Assembly and one Member of the Provincial Assembly clearly shows that some of the accused were falsely implicated on the ground of personal enmity the parties having admittedly a previous background of blood-feuds amongst them. It is argued that further support is lent to this view by the acceptance of the pleas of alibi raised by Anwar Saeed and Muhammad Amin, of whom the former was present in Shalimar Hotel in Madyan (Swat) at the relevant time as supported by documentary evidence. It is contended that the only part attributed to the two petitioners is Muhammad Akram alias Mota held the deceased in his clasp while Billa was a member of the unlawful assembly with no specific role having been ascribed to him. Lastly, it is submitted that in view of the fact that there are two alternative and mutually exclusive versions one that of the complainant falsified by the other namely, that of the police, the petitioners would be entitled to bail as of right under section 497(2), Cr. P. C.
5. On the other hand the bail of Mota is opposed by the learned counsel for the State on the grounds, firstly, that a specific role has been attributed to him as having opened the attack by holding the deceased in his clasp which is further supported by the fact that at the time of arrest soon after the occurrence his clothes were found to be stained with blood. As regards Nazir alias Billa grant of bail is opposed on the ground that the independent witnesses examined by the police in the course of investigation, apart from those mentioned in the initial report, have specifically implicated him and Naheed Akhtar the proclaimed offender.
6. Muhammad Ashraf complainant has male a grievence that the police has deliberately tried to spoil this case at the instance of some higher authorities as evident by Report No. 45, dated 17-4- 1972, in the daily diary of Police Station Naulakha and which rendered into English would mean something like this: -- "6-50 p.m. At this time Sh. Muhammad Rafique has enquired on the telephone as to why the relatives of the accused persons in Case No. 209/72 have been summoned in the police station.
7. This 70 years old unjustified and anachronistic practice Should be given up now. These relations of the accused persons should be at once released as they have no knowledge of the absconding accused. The police should visit the houses of the accused for inquiry and let off their relations.
8. Compliance should be communicated on the telephone.
9. It is next submitted by the complainant that in their petition for bail before the learned Sessions Judge moved by Anwar Saeed and Muhammad Amin two of the co-accused of the petitioners no such plea of alibi was raised by them, and though their petition for bail had been dismissed by the learned Sessions Judge on 22-4-1972 and non-bailable warrants for their arrest had been issued yet the police released them on bail on the basis of their tainted finding. It is submitted by the complainant that in his report No. 7 made by Zaigham Saeed, brother of Anwar Saeed a co- accused of the petitioners found innocent by the police-at Police Station Gulberg at 5-05 p.m.
10. Soon after the occurrence he specifically made a reference to having received information about the fight between the opposite-party and the P. Ws. Of the murder case of his brother. It is submitted that these P. Ws. Were none else than Ghazanfar Ali, Khalid Saeed and Naheed Akhtar.
11. In so far as the submissions made by the complainant on the basi of the bail application of Anwar Saeed, Muhammad Amin also the police report by Zaigham Saeed are concerned they do not appear to be relevant for the purposes of the disposal of the instant petition which is confined to the bail of Akram alias Mota and Nazir alias Billa petitioners.
12. In so far as the case of Akram alias Mota is concerned a specific role has been attributed to him by the complainant in the F. I. R. Which position has been upheld by the police as a result: of its investigation. Accordingly, I decline bail to him. However, no specific role appears to have been attributed to Billa petitioner who is merely mentioned as having been present at the spot.
13. He is allowed bail on furnishing security in the sum of Rs. 10,00 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Lahore.
14. This disposes of the petition.