' Vide impugned order, dated 14-5-1?89 Sessions Judge, Sahiwal, granted pre-arrest bail to Mehdi Shah, Muhammad Shah, Anwar Shah, Riaz Hussain Shah, Mahmood Shah alias Khushi Shah and Payera Shah accused who allegedly had murdered Abdul Sattar and caused grievous hurt to Muhammad Shafi by firing at them, as reported in case F.I.R. No,165/89 of Police Station Noor Shah District Sahiwal, registered under sections 148, 307, 302 read with section 149, P.P.C. Observing that as per statement of Additional Superintendent of Police sufficient material making out a prima facie case against the accused/respondents had not been collected and leaving it open for the prosecution to move for cancelling their bail after completion of the investigation. Feeling aggrieved thereby Muhammad Shafi complainant/petitioner herein, without waiting for the completion of investigation filed four petitions namely, Criminal Miscellaneous No 4083-CB of 1989 to 4086-CB of 1989 seeking cancellation of bail of Mehdi Shah, Muhammad Shah, Anwar Shah, Riaz Hussain Shah, Muhammad Shah alias Khushi Shah and Payera Shah respondents, which are being disposed of by this single order.
2. According to prosecution, on the night between 18/19th March, 1989 comedians (Bhand) were staging a show hi Chak No,56/4-R where respondents with other villagers were present. At about 1 a.m. (mid-night) the complainant came out of his Baithak for urinating and seeing him, Muhammad Shah, Anwar Shah and Mehdishah accused armed with .12 bore guns, Payera Shah, Riaz Shah and Khushi Shah armed with Lathis shouted a Lalkara that they would teach him lesson for having voted for the Peoples Party and simultaneously Anwar Shah and Muhammad Shah respondents opened fire at him but the shot instead of him, had hit Abdul Sattar who died on the spot. The other shot fired by Mehdi Shah respondent had hit the complainant on his neck, which injury was found to be grievous. The remaining respondents had not injured anybody.
3. Learned counsel for the petitioner argues that learned Sessions Judge in his bail granting order has not held that there existed any mala fides on the part of the complainant in bringing this case, therefore, respondents had been granted pre-arrest bail in violation of the principles laid down in Murad Khan's case PLD 1983 SC 82. He further argues that in the absence of finding about mala fides on the part of prosecution, learned Sessions Judge had no jurisdiction to deal with they application of pre-arrest bail and since the Additional Superintendent of Police did not intend to arrest the respondents, the application had become infructuous. He has next submitted that the observation of the learned Sessions Judge that it was a 'case of fuither inquiry' is wholly unwarranted and unjustified as the entire material on record had not been considered by him, which was essential for the learned Sessions Judge to do so as observed by Supreme Court of Pakistan in Sadiq's case PLD 1985 SC 182 at page 187.
4. Learned counsel appearing for the respondents defending the impugned order replied that in their application the respondents had mentioned that prosecution mala fide had involved them in the case. He has today produced certified copy of private complaint titled Abdul Ghani v.
Muhammad `Sadiq Chandia etc. Under section 307, P.P.C. Filed on 2-3-1989 wherein, S.H.O. Police Station Noor Shah and Muhammad Shafi complainant of the instant case, are named as accused and the respondents Riaz Shah and Mehdi Shah appeared as P.Ws. Against them on 18-3-1989 i,e, a day before registration of this case. Further submitted that Muhammad Ramzan an eye-witness in the instant case (a real brother of Abdul Sattar deceased) has filed a private complaint alleging that Muhammad Shafi complainant/petitioner and Usman etc. Are the murderers of his brother and not the respondents. Muhammad Shah and Anwar Shah respondents according to learned counsel have been found innocent during investigation and participation of Khushi Muhammad, Riaz Shah and Payera Shah respondents is absolutely doubtful as there is no allegation that they caused any injury to anybody of complainant's side.
5. Ramzan P.W. In the case (brother of the deceased) and Mst. Niamat (mother of the deceased) and Bahadar (father of the deceased) have submitted affidavits absolving the respondents and implicating Hanif and Usman alongwith Muhammad Shafi the:complainant/petitioner as the murderers of Abdul Sattar deceased. Learned counsel for the petitioner replies that the respondents are influential people who have manoeuvred all this subsequently.
6. A.S.I. Ghulam Shabir present with record states that both parties including the respondents had joined the investigation with Additional Superintendent of Police on many occasions prior to 14-5- 1989 and that on 20-5-1989 number of persons having appeared before Additional Superintendent of Police stated that deceased was hit by the shot fired by Hanif (a P.W. In the case) and that Muhammad Shah, Khushi Shah and Anwar Shah respondents were not present at that time. He admits that in his Zimni dated 25-5-1989 the Additional Superintendent of Police has declared Muhammad Shah and Anwar Shah as innocent and that now challan is ready for being put in Court.
7. I have carefully considered the arguments addressed, by the learned counsel and case-law cited at the Bar and perused the record as well.
8. Learned Sessions Judge appears to have granted pre-arrest bail to the respondents because the Additional Superintendent of Police who at that time was investigating the case, stated that 'he has not yet formed any opinion as to whether all the petitioners (respondents) had participated in the occurrence and if so with whose fire the deceased had died'. The record shows that the respondents had alleged mala fides against the complainant in their bail application and that they have been joining the investigation after grant of interim pre-arrest bail. As per his statement made on 14-5-1989 the Additional Superintendent of Police was not sure about guilt of the respondents. Therefore, learned Sessions Judge was not far wrong in observing that 'it was a case of further inquiry' which of course was a tentative assessment as is apparent from the following sentence of his order that 'after completion of investigation, the prosecution oithe complainant may move for cancellation of their bail'.
9. Respondents' apprehension of being arrested continued despite the statement of the Investigating Officer made before the Sessions Judge on 14-5-1989, therefore, I find that the learned Sessions Judge in the circumstances had jurisdiction in the matter and passed the appropriate order. The investigation is now complete. The petitioner has come to this Court without approaching the learned Sessions Judge for cancellation of bail of the respondents. The impugned order is, dated 14-5-1989, so I proceed to decide the matter to avoid further delay.
10. The parties are old rivals. They are locked in litigation. Mala fides on the part of prosecution is not only alleged but certified copies of Court record have been produced in its 'support. The parents of the deceased have absolved the respondents of the allegation of murder of their son. Muhammad Shah and Anwar Shah respondents have been found innocent by the police, on the basis of some evidence, the evaluation of which is the function of the trial Court. In the circumstances, I refuse to cancel the bail granted to Muhammad Shah and Anwar Shah. Similarly I refuse to cancel the bail granted to Payera Shah, Riaz Shah and Khushi Shah who admittedly did not cause any injury to any person of the complainant party.
11. As for Mehdi Shah, respondent, his case stands on a different footing. There is clear and constant allegation against him that he fired at Muhammad Shafi complainant causing him grievous injury on the neck. The police has also found him guilty. There exist reasonable grounds to believe that he is guilty of committing an offence under section 326/307, P.P.C. Thus he is not entitled to remain on pre-arrest bail granted to him by learned Sessions Judge, Sahiwal. His bail is, therefore, cancelled.
The police shall arrest him and commit him to jail during the pendency of the trial. He shall be at liberty to apply for grant of post-arrest bail to the Court concerned which shall decide the question on merits.