The petitioner, Muhammad Nawaz, has moved this petition under section 497(5), Cr.P.C. For cancellation of bail allowed to respondents Nos. 1 to 5 in a case registered against them under section 302/307/1489, P.P.C. At Police Station Phalia, District Gujrat -vide F.I.R. No. 103 dated 1-4-1988.
2. The complainant Muhammad Nawaz is the resident of village Pindi Rawan, District Gujrat. A metalled road passes through the agricultural land of Ghulam Rasool son of Rehman and Gula son of Roshan. Both the abovesaid proprietors of the land have set up their Kinnu orchards in their land.
On the border of the land of Ghulam Rasul some Keekar and Bairee trees are also standing there.
The case of Gulla, respondent, is that these trees belong to him. On 1-4-1988, at about 3-00 p.m., the complrunant Muhammad Nawaz, his brother Muhammad Ashiaf, Bakhsha son of Sher Muhammad, Ahmad son of Muhammad and Muhammad son of Shahu, were going back from the village Pindi Rawan to their respective Deras. Ghulam Rasool was busy in cutting trees on the border of his land. The abovesaid persons sat with him and started enjoying Hooka. In the meantime, from the orchard of Gulla, Saroo son of Roshan, Tariq son of Gulla, Riaz son of Ahmad, Mushtaq son of Muhammad, all armed with .12 bore guns, and Arif son of Gulla, Ahmad son of Gulla, Moonda son of Ahmad, armed with sticks came there. Saroo shouted in the orchard that they will give trees to the complainant today. Immediately thereafter Saroo fired with his .12 bore gun which hit Muhammad Ashraf on his left shoulder. Tariq fired which hit Muhammad Ashraf on his chest. On the receipt of the injury he fell down on the ground. Thereafter Muhammad Riaz son of Ahmad fired with his gun which hit on the left elbow and right hand of Ahmad son of Muhammad. Mushtaq son of Muhammad fired at Ghulam Rasool which luckily did not hit him. The complainant Muhammad Nawaz, Ghulam Rasool, Muhammad son of Shahu and Bakhsha son of Shero ran away and saved their lives by concealing themselves behind the trees. All the accused while firing, returned to their Deras. Muhammad Ashraf died at the spot on account of the fire-arm injuries. It is alleged that the offence has been committed as a result of the due deliberation with Gulla son of Roshan. Ahmad son of Muhammad while in injured condition was brought to the police station.
3. At the very outset, it may be noted that Ahmad, respondent was allowed bail by me vide order dated 31-8-1988 on the ground that he did not cause any injury to the deceased: Arif, Moonda and Gulla, respondents were admitted to bail by the learned Additional Sessions Judge, Gujrat on 6-7- 1988. Mushtaq respondent was allowed bail by the learned Additional Sessions Judge vide his order, dated 5-10-1988. It may be observed that by means of one joint petition, the learned counsel prays that the bail allowed to the respondents by the High Court as well as by the learned Additional Sessions Judge may be cancelled.
4. I have heard the learned counsel for the parties and have perused the record. The principal argument of the learned counsel for the petitioner is that in a murder case like this, respondents Nos. 1 to 5 are not entitled to be released on bail. He submits that all the respondents are named in the F.I.R. And were armed with weapons and specific role has been attributed to them and as such there was absolutely no legal justification to admit them to bail. In support of his contention, the learned counsel has produced number of authorities by the Hon'ble Supreme Court of Pakistan and by the High Court. The learned State counsel and the learned counsel for the respondents, however, submitted that each case has to proceed according to its own peculiar facts and circumstances. Learned counsel for the respondents states that prima facie no case is made out against them. Vide my order dated 31-8-1988, the respondent Ahmad was admitted to bail on the ground that he did not cause any injury to the deceased. The learned Additional Sessions Judge, Gujrat on 6-7-1988 while granting bail to Arif, Moonda and GulIa, respondent., observed that no role was given to Arif in the F.I.R. And further according to the school leaving certificate to his age was less than 16 years at the time of occurrence. As regards the respondents Moonda and Gulla, he noted that police has declared them as innocent. Even no overt act was attributed to Moonda respondent and no recovery of stick was effected from him. It was mentioned by the learned trial Court that there was no evidence regarding the conspiracy by means of which Gulla, respondent, was implicated in the case. On these premises, the learned trial Court proceeded to say that the case of the respondents, Arif, Moonda and Gulla, was that of further enquiry. Similarly, vide order dated 5-10-1988, the learned trial Court noted that allegation of ineffective firing has been levelled against Mushtaq, respondent and that his case was held to be at par with the other co-accused having already been released on bail. These are the circumstances under which the respondents Nos. 1 to 5 were given the concession of bail by the High Court and the learned Additional Sessions Judge, Gujrat. On the factual side of the case, it is conceded that although the respondents were present at the spot at the time of occurrence but they did not do any overt act except that they were armed. The learned counsel says that in the circumstances of the case it cannot be held that this is a case of further enquiry. I do not agree with the contention raised and argued by the learned counsel. As observed earlier, prima facie, the respondents did not at all do any overt act in the commission of the crime. They did not cause any injury to the deceased. In my view this is definitely a case of further enquiry. Arif, respondent is below sixteen years in age. Mushtaq respondent is alleged to have indulged in ineffective firing. Gulla and Moonda, respondents were declared innocent by the Investigating Police. Ahmad, respondent was although armed with stick but he did not make of that stick. In the circumstances of the case, I am justified in law in observing that there are reasonable grounds for believing that the respondents Nos.1 to 5 are not guilty of any such offence as alleged against them. The discretion was definitely exercised by this Court as well as by the learned Additional Sessions Judge in accordance with law. Learned counsel for the petitioner has failed to make out any case for interference. The petition being devoid of force is dismissed.
Anything said above, shall not prejudice the case of either party on merits.