This order will dispose of bail petition (Criminal Miscellaneous 635---B of 1987) filed by Muhammad Sarwar, complainant, for the cancellation of bail allowed to Fayyaz Rashid and Imtiaz Rashid, respondents, by an Additional Sessions Judge of Lahore on 9-2-1987 and bail petition (Criminal Miscellaneous 1112-B of 1987) filed by Pervaiz alias Chitta. Petitioner, for bail.
2. On 18-12-1986, Muhammad Sarwar, complainant, registered an F.I.R. At Police Station Ichhra, Lahore, under section 302/452/148/147/427, P.P.C. Against Pervaiz alias Chitta (petitioner in bail petition Criminal Miscellaneous 1112-B of 1987), Fayyaz Rashid and Imtiaz Rashid (respondents in bail petition Criminal Miscellaneous 635-B of 1987) and Jamil alias Jeera, Riaz and Tariq alias Tara in respect of the murder of Muhammad Khan, deceased, and injuries to Muhammad Ashraf, MstKhalida and Mst. Shah Kako Bibi.
3. The prosecution case in brief is that one Mst. Allah Rakhi, daughter of Irshad, who was paternal- cousin of Muhammad Sarwar, complainant, was constantly being molested by Jamil, Riaz, Fayyaz, Imtiaz, Pervaiz alias Chitta and Tariq alias Tara, accused. She had complained about this ill- treatment to Muhammad Sarwar, complainant, and Muhammad Khan deceased. The complainant and the deceased had forbidden the said accused from molesting Mst. Allah Rakhi and had also complained about their conduct to their parents. On 18-12-1986 at about 6-00 p.m Muhammad Sarwar, complainant, Muhammad Khan, deceased and Muhammad Ashraf P.W. Were present in their house, when Jamil and Riaz, accused, were sitting outside the residence of Mst. Allah Rakhi, which was a short distance away. The complainant and the deceased requested the two accused to leave that place, whereupon a quarrel erupted between them and the two accused left the place hurling threats. The same evening after about 15 minutes, Jamil, accused, armed with an iron pipe, Pervaiz alias Chitta, accused, armed with Sota, Riaz and Fayyaz, accused, both armed with knives. Tariq alias Tara, accused, armed with knife and Imtiaz, accused, empty handed, came to the complainant's house and told them to come out. Out of fear, the complainant party bolted the outer door of their house from inside. However, the six accused broke open the outer door and illegally trespassed into the house. Riaz and Imtiaz, accused, caught hold of Muhammad Khan, deceased, by his arms and dragged him outside the house. When the womenfolk in the house tried to rescue the deceased, Jamil, accused, inflicted a blow with his iron pipe on the right wrist of Mst.
Khalda P.W. Pervez, accused, inflicted a Sota injury on the head and right shoulder of Mst. Shah Kako Bibi, Tariq, accused, inflicted a knife injury on the index finger of Muhammad Ashraf P.W; and Pervaiz. Accused, inflicted a Sota blow thereafter on his head. During this struggle. Riaz and Imtiaz, accused, dragged Muhammad Khan, deceased, out of his house up to the house of Malik Mushtaq alias Makha, which was about 150 yards away. Muhammad Sarwar complainant, and Muhammad Ashraf P.W. Followed them, raising alarm on the way. Hearing the noise, Rustam Khan P.W., a neighbour, also joined them. Within their view, Fayyaz, accused, inflicted a knife injury on the right chest of Muhammad Khan, deceased, as a result of which he fell down. When the witnesses tried to intervene, Fayyaz, Riaz and Imtiaz, accused, shouted a Lalkara that if anybody came near, he would meet the same fate. Thereafter, the accused decamped from the scene.
4. On behalf of Muhammad Sarwar, complainant, it is submitted that Fayyaz Rashid, respondent, was not at Haroonabad on the day of occurrence attending the Rasam-ul-Khatam of his cousin Mst. Amino Bibi and that when Ilyas Khan S.I., the Investigating Officer, went to Haroonabad, the seventeen councillors and Advocates, who had furnished affidavits stating that the respondent was in Haroonabad, had confessed that they had given these affidavits due to friendship with the father of the respondent and that they were not prepared to take an oath on the Holy Quran that the respondent was present at the Rasam-ul-Khatam on that date. It is further submitted that Sh.
Muhammad Siddique, Deputy Superintendent of Police, who investigated the case, later did not go to Haroonabad himself to verify the affidavits. It is, therefore, submitted that Fayyaz Rashid, respondent, was not present at the Khatam on the day of occurrence, as alleged. As regards Imtiaz Rashid, respondent, it is submitted that the twelve eminent political persons and Advocates who submitted their affidavits to the effect that this respondent was present in the procession of the M.R.D. From 3-00 p.m. To 5-00 p.m. And thereafter at the office-cum-residence of Nawabzada Nasarullah Khan from 5-00 p.m. To 7-00 p.m. Did not appear before the police and that when Muhammad Ilyas Khan S.I. Went to see them, all of them made themselves scarce.
5. On behalf of the State and the respondents it is submitted that Sh. Muhammad Siddique, Deputy Superintendent of Police, did examine all the witnesses who had submitted their affidavits in proof of the alibi of Fayyaz Rashid and Imtiaz Rashid, respondents and that the last zimini also shows that they had satisfied the Police Officer on the basis of oath taken on the Holy Quran as well and that the said respondents have been found innocent by the police.
6. On behalf of Pervaiz alias Chitta, petitioner, it is submitted that he is only attributed to have inflicted injuries with his Sota on the person of Muhammad Ashraf and Mst. Shah Kako Bibi P.Ws.
And not to have inflicted any injury on Muhammad Khan, deceased.
7. On behalf of the complainant it is submitted that section 149 is applicable. The petitioner is also vicariously liable and since he had inflicted injuries on the heads of Muhammad Ashraf and Mst Shah Kako Bibi, he is not entitled to be released on bail.
8. I have heard the arguments of the learned counsel for the complainant, the three accused and the State and have perused the record. The first part of the occurrence relates to the trespass into the house of the t deceased by all the six accused and injuries inflicted by Jamil alias Jeera, Pervaiz alias Chitta and Tariq, accused, to Muhammad Ashraf, Mst Khalda and Mst. Shah Kako Bibi and force used by Riaz Rashid and Imtiaz Rashid, accused, in catching hold of Muhammad Khan, deceased, by his arms and dragging him out of his house, whereafter he was taken upto the house of Malik Mushtaq alias Makha, followed by Fayyaz Rashid, accused. The second part of the occurrence consists of the fatal injury given by Fayyaz Rashid, accused, to Muhammad Khan, deceased, on his right chest, just opposite the house of Malik Mushtaq alias Makha, as a result of which the deceased fell and died. In this part of the occurrence, Jamil alias Jeera, Pervaiz alias Chitta and Tariq alias Tara, accused, do not appear to have participated. The first part of the occurrence only relates to the trespass into the house of Muhammad Khan, deceased, and assault on his family members by three of the accused, including Pervaiz alias Chitta, petitioner, who is alleged to have inflicted simple injuries on Muhammad Ashraf and Mst. Shah Kako Bibi P.Ws. Pervaiz alias Chitta, accused, did not inflict any injury on the deceased. Since he did not participate in the second part of the occurrence, he has made out a case for his release on bail. As regards Fayyaz Rashid and Riaz Rashid, accused, they have both been found innocent by Muhammad Siddique, Deputy Superintendent of Police in his investigation. In support of the plea of alibi, affidavits of respectables have been taken into consideration by the Police Officer, who also satisfied himself by calling upon the deponents to take oath on the Holy Quran, which they did., Without going on the record as having given any finding in the matter, Iwould only say, for the limited purpose of the complainant's petition for the cancellation of bail of Fayyaz Rashid and Imtiaz Rashid, accused, that the order of the learned Additional Sessions Judge, Lahore, allowing them bail, is neither illegal nor perverse.
8. For the foregoing reasons, the petition for the cancellation of bail (Criminal Miscellaneous 635-B of 1987) filed by Muhammad Sarwar, complainant, is dismissed.
9. The bail petition (Criminaly Miscellaneous 1112-B of 1987) filed by Pervaiz alias Chitta, petitioner, is accepted and he is released on bail, subject to his furnishing security in the sum of Rupees thirty thousand (Rs.30,000) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner (City). Lahore.