' AFRASIAB KHAN, J.-- The brief facts of the bail application are as follows:- ' That F.I.R. No,308, dated 11-6-1988 was registered at Police Station City `B' Division, Sheikhupura, under section 302/307/109/34, P.P.C. According to which at about 8-10 a.m. Outside the gate of District Jail, Sheikhupura, Shehbaz Ahmed fired at Ilyas, Ahmed All at Ghulam Abbas, Dosa at Barkat Ali and Niamat at Ahmed Ali, respectively. As a result of the firing Muhammad Ilyas died whereas Ghulam Abbas, and Ahmed Ali complainant sustained injuries. It was also alleged that the occurrence took plke on the instigation of Ghulam Muhammad, Mokha Musalli and the present two petitioners, namely, Bashir Ahmed Vallana and Muhammad Ashraf Vallana.
' That the motive of offence is alleged to be that on 24-11-1987 an F.I.R. Was lodged with Police Station Factory Area, Sheikhupura, against Ahmed Ali son of Ghulam Haider and his brothers accusing them of the murder of Karamat and Niamat. Accused in this case were on bail, and
(iii) That in this case the accused named in the F.I.R. Alleged to have fired, as stated in para. Above, were arrested alongwith fire-arms. However, the petitioners were arrested 10/12 days after the said occurrence.
2. The present petitioners had moved an application for bail under section 497, Cr.P.C. Before Kh.
Mahmood Ahmad, Judge, Special Court for Speedy Trials No,1, Lahore. It was dismissed on 8-12- 1988 merely on the ground that the trial was to start on 3-1-1989 and that the petitioners have been named in the F.I.R. And allegation against them is that of conspiracy.
3. Now the petitioners have come up before this Court for the grant of bail.
' The learned counsel for the petitioners has argued for bail on the following grounds:- (i)That the petitioners are recovery witnesses in case under the F.I.R. No, 383, dated 24-11-1987 registered at Police Station Factory Area, Sheikhupura, in which the complainant party are accused of offences under sections 302/109/307 and 148/149, P.P.C. And that the petitioners are neither related to the complainant party nor to the accused persons and it is for the reasons of putting pressure on them and to subvert the process of law that the petitioners have been roped in so as to either prevent them from giving evidence in the case under F.I.R. No, 383, dated 24-11-1987 of Police Station Factory Area, Sheikhupura, or in the alternate to create circumstances to discredit them, and thus the complainant party has sought to impede the process of law and justice.
(ii) That the motive of occurrence in the present case does not ascribe any fault thereof to the petitioners and the petitioners have nothing to do with the motive so stated.
(iii) That the only reference to the petitioners is at the end of the F.I.R. In which it is stated that the occurrence is at their behalf and on behalf of some other persons named therein.
(iv) That no role is ascribed to the petitioners and they are not alleged to have been present at the site nor they have caused any injury to anyone.
(v) That there are only two witnesses, namely Hidayat and Sharif, who have stated in their statements under section 161, Cr.P.C. That the petitioners had also participated in the conspiracy as alleged in the F.I.R. It was, however, pointed out that there are material contradictions in the statements of the two persons. In this respect, it was pointed out that neither of the two witnesses named the other to have been present at the time when the alleged conspiracy was being held and, therefore, this contradiction is fatal to their respective testimony.
' In this respect it was also pointed out that the allegation of conspiracy is of a general nature and so vague as not worth giving any credence to.
4. In this respect, it is also pointed out that Hidayat aforementioned is the real brother of Muhammad Tufail and accused of murder of Amanat Ali and Karamat Ali under F.I.R. No,383, in which Ahmed Ali, the present complainant is also an accused person, and that the said Hidayat would be allowed to and would dare to visit the Dera of Ghulam Muhammad, father of Amanat Ali deceased, or that a conspiracy to kill Ilyas and others will be held in his presence is inconcievable and preposterous. Therefore, the whole story of conspiracy is false and deliberate.
' That the learned Judge, Special Court for Speedy Trials No,1, Lahore, had rejected the bail application without adverting to the facts and circumstances of the case stated above, and that the refusal of bail on the ground that the trial was to commence on 3-1-1989 is contrary to the principle laid down by the superior Courts that the'bail should not be refused as punishment.
' That the learned counsel for the petitioner, therefore, vehemently pressed for bail on the grounds stated above and forcefully argued that there was no evidence worth the name on which the bail should be refused, and that the rial was to commence on 9-11-1988 and thereafter on 3-1-1989 and now it has been adjourned to 7-1-1989 and that there may be further adjournments.
5. The learned Advocate-General, Punjab, however, contested the bail application primarily on the ground that the trial was to commence within days. The learned Advocte-General did not advert to the facts and circumstances of the case nor did he make any attempt to rebut the arguments advanced by the learned counsel for the petitioners. In support of his contention the learned Advo'cate-General cited the following cases:- (i)
Muhammad Sadik and others v. The State 1980 SCMR 203:- ' Wherein it was held that as the date for trial had already been fixed, therefore, it was not fair to go into the merits of the case in the form of a bail application at the juncture of the grant of Special Leave to Appeal.
However, the present case is distinguishable from the case cited therein, the Special Leave to Appeal was also opposed on the basis of merit and evidence on the record.
(ii) Khadim v. Hasan and others 1985 SCMR 909:- ' In this case the petition for Special Leave to appeal for cancellation of bail was refused as the trial had already commenced and the prosecution evidence recorded, and the case was fixed for arguments on the very date that the petition was disposed of. This case is also distinguishable from the present case as it was for cancellation of by the High Court and the facts and the circumstances of the case were very different from the present petition, and
(iii) Mst. Irshad Begum v. Muhammad Afzal and another 1985 SCMR 1691:- ' In this case the petition for Special Leave to Appeal for cancellation of bail was refused on the ground that the date for commencing of the trial was fixed. This case is also not on all fours with the present one as it was for cancellation of by the High Court. Obviously, the question of cancellation of by the High Court is different from the exercise of High Court's powers to grant bail on the basis of the facts and circumstances of a case and the law applicable thereto.
6. However, to rebut the arguments of the learned Advocate-General, the learned counsel for the petitioners relied upon Shaukat Khan v. The State 1986 P Cr. L J 1054, wherein it was held that the mere fact that the case was fixed for hearing is no ground to refuse the concession of bail to an accused person who is otherwise entitled to it.
' He further relied upon Manzoor and 4 others v. The State PLD 1972 SC 81, wherein it was held that the bail was not to be withheld as punishment. He also cited Amir v. The State PLD 1972 SC 277, wherein it was held by the Honourable Supreme Court that for the purposes of bail law is not to be stretched in favour of the prosecution and that benefit of doubt, if any arising, must go to the accused.
' The learned counsel for the petitioners further argued that if there was a case at all against the petitioners it was a case for further inquiry and, therefore, the petitioners were entitled to bail. In this respect, reliance is placed on Muhammad Saleem Abdullah Nazakani and another v. The State 1978 P Cr. L J 625.
7. The Investigating Officer, Police Inspector, Muhammad Ashraf was present in the Court with the record and he has stated that except for the statements of Hidayat and Sharif under section 161, Cr.P.C. There is no other evidence linking the present petitioners with the commission of the offence alleged, and that they are no longer required for investigation.
8. It was also pointed out that the accused are in jail for the last 6 months.
9. That in the facts and circumstances of the case and in view of the cases cited by the learned counsel for the petitioners and taking into consideration the statement of the Investigating Officer, we are not persuaded that the bail should be withheld only on the ground that the date for the commencement of trial is quite at hand. The learned Advocate-General had opposed the grant of bail on this ground only.
10. In view of our observations in this respect and accepting the arguments of the learned counsel for the petitioners on the merits and circumstances of the case, and as the petitioners are no longer required for investigation, and as stated by the Investigating Officer that only evidence against them is that of Hidayat and Sharif under section 161, Cr.P.C. And prima facie because of the inherent defects of contradictions in these statements, and as the petitioners have been in the jail for the last six months and the investigation till date has not brought to light any overt or covert act by the petitioners in either committing the offence alleged or in furtherance thereof, the refusal of bail shall amount to punishment and of stretching of the law in favour of the prosecution.
Therefore, we admit the petitioners to bail in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner/Resident Magistrate, Sheikhupura. The observations herein shall have no bearing on the trial of the case.