This order will dispose of two applications for bail before arrest, namely. Crl. Misc. No. 3599/B of 1972 by Murid Mehdi Khan and Cr. Mist. No. 600/B of 1972 by Sher Ahmad Khan and Muhammad Iqbal Khan as both of them relate to the some case. The above-mentioned two petitioners (in C. M. No. 3600/B of 1972) are accused along with 10 others of offences under sections 148 and 302/307/ 149, P. P. C. Murid Mehdi Khan is accused of having instigated the other accused to commit the offence of murder.
2. The occurrence took place in village Piplan, District Mianwali. The F. I. R. Was lodged by Muhammad Afzal Khan. The facts given in it are briefly that he (i.e. Muhammad Afzal Khan) his father Ata Muhammad and sonic others were returning to their houses from the house of Ijaz Khan.
When they reached near the front door of his (Afzal Khan's) house, the following accused persons, all of whom were armed with firearms, turned up, at the spot:-
(1) Muhammad Iqbal Khan petitioner with revolver.
(2) Sher Ahmad Khan (petitioner) with revolver.
(3) Anwar Khan with rifle.
(4) Akram Khan son of Aslam Khan with rifle.
(5) Bashir Khan son of Sufi Ghulam Akbar Khan with gun.
(6) Akram son of Krak Khan with gun.
(7) Abdul Sattar son of Payara with gun.
(8) Zulfiqar A.I with rifle.
(9) Ghulam Akbar Khan with gun.
(10) Bashir son of Payara with rifle.
(11) Akram son of Payara with gun.
(12) Abdul Sattar son of Ghulam Muhammad Khan with gun.
Anwar Khan accused raised a lalkara and fired a shot at Sher Rasool Zulfiqar A.I accused fired a shot at Nur Muhammad, who died at the spot. Then alt the accused opened fire, as a result of which Ata Muhammad, the father of Muhammad Afzal was also hit, and fell down. Through the accused left shouting talkar a and firing shots, Sher Rasool was taken on a cot to the police station but on reaching there he also died. Ata Muhammad was sent to Civil Hospital for medical aid. It is also stated in the F. I. R. That this attack was made at the instance of Murid Mehdi Khan (petitioner in C. M. No. 3599/B of 1972); that the complainant bad come to know on the previous evening that Anwar Khan, Akram Khan and Bashir son of Payara had gone to the house of Murid Mehdi Khan, who instigated them to murder Ata Muhammad and that he (Murid Mehdi Khan) had promised that he would be personally responsible for the eventualities and bear all the expenses. It is stated.
In the F. I. R. That he was informed about this conspiracy by Muhammad Nawaz and Muhammad Amir P. Ws. Who had heard it themselves.
3. The motive for the offence is stated to be that about 2/3 years prior to the occurrence there had been firing between the party of Murid Mehdi Khan on one side and the complainant party on the other, as a result of which a case under section 307, P. P. C. Was registered stud both sides wire challaned. Apart from this Anwar Khan accused had forcibly carried away the wheat crop: of the tenants to the Police. Ata Muhammad P.W.Had helped the tenants, as a result of which Anwar Khan and Murid Mehdi Khan had threatened that they would take revenge from them.
4. While issuing notice to the State, the petitioners were granted interim bail so that their applications should not become infructuous. The applications have now come up for final hearing, on merits. All the three petitioners in the two applications are represented by the same counsel and the same counsel has appeared for the State in both the applications.
5. The learned counsel for the petitioners submitted with regard to Muhammad lqbal Khan and Sher Ahmad Khan (Petitioners in C. M. No. 3600/B of 1972) that they have been falsely involved in the case. He pointed out that no specific injury has been attributed to them and that against them there is only a general allegation of having opened fire with their weapons. He submitted further that no injury on the person of the two deceased or Ate Muhammad; the injured P. W. Can be said to have been caused by a revolver shot and that Sher Ahmad and Muhammad Iqbal (petitioners in C. M. No. 360i'/B of 1970, who are said to have carried revolvers, cannot, therefore, be said to have caused any injury to any one.
I have carefully considered the above-mentioned contentions and am not persuaded to agree with them. The occurrence took place in broad day light in the village abadi at 4 p.m., The F. I. R.
Was lodged at police station Piplan (which Is situated. At a distance of 4 furlongs from the spot), without any loss of time at 4-30 p.m. And the petitioners are specifically named in it. They are alleged to have been carrying fire-arms which they used. As observed by the Supreme Court in a string of cases, this is not the proper stage to consider the correctness or otherwise of the allegations. The principle laid down by the Supreme Court is that the court should see whether the allegations made against the petitioners are such that if they were to remain unrebutted, a prima facie case would be made cut against them and whether they would be liable for an offence punishable with death or transportation. Refer Nasir Ahmad v. State (PLD 1971 SC 174). On considering the percent case in accordance with the above-noted principle. I feel that there are reasonable grounds for believing that the petitioners are guilty of an offence punishable with death or transportation for life and as such, they are not entitled to grant of bail. Moreover, the present application is one for bail before arrest, and in the same authority (PLD 1911 SC 174) the Supreme Court has not approved of the practice of granting anticipatory bail to persons accused of such serious offences. The application of Muhammad Iqbal Khan and Sher Ahmad Khan (Petitioner in C.
M. 3600/B of 19 0 2) is, therefore, rejected.
6. I now take up the application (Cr. Misc. No. 3599,13 of 1972 of Murid Meudi Khan petitioner. As already mentioned the allegation against him is that it was he who had instigated the other accused to make the attack. Muhammad Nawaz and Muhammad Amir P. Ws. Are said to have informed the complainant about this conspiracy. Ordinarily such an allegation with regard to a person who was admittedly not present at the spot, raises a suspicion and puts one on guard.
More often then not, such an allegation is merely a device for implicating the person in question.
The present case is, however, different from the general rung of cases, inasmuch as the F. I. R. Was lodged by Muhammad Afzal within 15 minutes of the occurrence wherein he not only made the allegation of conspiracy instigation against Murid Mehdi Khan petitioner but also named the persons, who bad informed hint about the same. These two persons namely, Muhammad Nawaz ad Muhammad Amir, have been examined by the police. The learned State counsel has produced copies of their statements under sec--petition 161, Cr. P. C. Muhammad Nawaz has deposed that he was present when the conspiracy was hatched. Muhammad Amir is said to have bear it while sitting just outside the dera of Murid Mehdi Khan petitioner. The learned accused for the petitioner argued that the statements of these witnesses do not inspire confidence and. Should be ignored. I am afraid I cannot do so because ac already observed this is not the stage to appreciate the value of the statements of witnesses and to do so would be to forestall the trial. I feel that there are reasonable grounds for believing that Murid Mehdi Khan is prima facie guilty of an offence punishable with death and no consent reason has been advanced to grant him bail even before be is arrested by police. It s may also be mentioned that the learned State counsel has sub-- mitted that the petitioners have not been joining the investigation during the period in which they were on interim bar). As a result the application of Murid Mehdi-Khan petitioner is also dismissed.
7. The interim bail granted to all the three petitioners is hereby cancelled.