1. By these three Crl. Misc. Applications, petitioner Bakhtiar Khan prays for cancellation of bail granted to respondents Syed Zia Abbas, Tariq Saeed and Mir Ajab Khan, by It Additional Sessions Judge, Karachi. The three respondents, alongwith 5 others, namely, Habib-ur-Rehman, Rustam Khan, Zabta Khan. Muhammad Akbar and Hussain Khan are accused in a case under sections 302, 307/149, P. P: C. Which was registered at the Jackson Police Station, Karachi, on 6th September, 1974, at 1-45 p.m. The incident is said to have occurred 15 minutes earlier, at a distance of two furlongs from the Police Station, opposite Qadri Hotel in which the three persons, namely, Noor Hassan, Abdul Hassan and Fazal Qayyum were injured. The injuries on two victims Noor Hassan and Abdul Hassan proved to be fatal, former died on the spot, whereas latter succumbed to the injuries on the same day at about 5 p.m.
2. The First Information Report of the Crime was lodged by the petitioner Bakhtiar Khan, who claimed to have seen the occurrence. According to the version of the incident given by him in the F. I. R. He was sitting in a shop opposite to Qadri Hotel when he saw Jeep No. KAX-7626 being driven by Habib-ur-Rehman, Rustam Khan and Zabta Khan sitting with him on the front seat, and Muhammad Akbar, Tariq Aziz (whose name was subsequently substituted by him for Tariq Saeed) and Syed Zia Abbas sitting on the rear seat. Mir Ajab Khan followed the jeep on the scooter. At that time Noor Hassan, Abdul Hassan and Fazal Qayyum were standing in front of Qadri Hotel, and seeing them Syed Zia Abbas stopped the jeep and asked his companions "to take advantage of the situation and finish their enemies." Habib-ur-Rehman was the first to open the assault by firing his gun, and, the bullet hit Noor Hassan in the eye. Rustam Khan then fired his gun at Abdul Hassan which struck his head. Thereafter, Zabta Khan used his gun and caused injuries on Fazal Qayyum's buttoks. All the culprits who were said to be armed with guns, rifles and pistols then fired at the three victims with a view to kill them. A number of persons are said to have witnessed the occurrence; among those the first informant, however, mentioned just two, namely, Muhammad Nawaz and Muneer.
3. Police investigation commenced immediately after the registration of the crime, and although the case by now has been challaned, yet it has not made any progress before the Magistrate dealing with the committal inquiry.
4. Learned Second Additional Sessions Judge, Karachi released three respondents Syed Zia Abbas, Tariq Saeed and Mir Ajab Khan on bail on the ground that no overt act has been attributed to them, except as against Syed Zia Abbas, who is said to have incited his companions. So far as Tariq Saeed is concerned, his name has been mentioned as Tariq Aziz. The only allegation against him and Mir Ajab Khan is that both of them were present. Mir Ajab Khan produced a Medical Certificate in support of his plea of alibi, that he was under treatment as a patient in the Services Hospital, Hyderabad, from 5th to 7th September 1974. According to learned Additional Sessions Judge, the case of the three respondents was on better footing than those in 5 reported cases cited as (1) PLD 1968 SC 310, (2) 1971, P Cr. L J 106, (3) 1971 P Cr. L J 778, (4) 1972 P Cr. L J 901, and (5) 1973 P Cr. L J 123, and he for all these reasons released them on bail.
5. Mr. Abdul Wahab Khan, learned counsel appearing in support of these applications, submitted that the bail granted to the respondents requires to be cancelled as their names have specifically been mentioned in the F. I. R. Which was lodged immediately after the crime, and the learned Additional Sessions Judge, Karachi, should not have embarked upon the merits of the prosecution case, or the plea of defence and made any observation in this regard in deciding the question of grant or refusal of bail to accused involved in capital offences. Learned counsel. Placed heavy reliance on the decisions of the Supreme Court of Pakistan in 'Muhammad Aslam and others v. State' (PLD 1967 SC 539) and 'Nisar Ahmad v. State' (PLD 1971 S G 174).
6. On the other hand, learned Additional Advocate General appearing for the State opposed the applications for cancellation of bail and supported the orders passed by the learned Additional Sessions Judge, Karachi. M/s. Muhammad Hayat Junejo, S. S. Sheikh and Muzaffar Hussain Shah, learned counsel appearing for the respondents Syed Zia Abbas, Tariq Saeed and Mir Ajab Khan supported the order of learned Additional Sessions Judge, Karachi, by pointing out two obvious factual errors in the version given by Bakhtiar Khan petitioner, in the F. I. R. Itself. These errors are, indeed, admitted, one pertains to the assertion that except for Mir Ajab Khan, other culprits came in jeep No. KAX-7626, and the other relates to the name of "Tariq Aziz as culprit, which has been afterwards substituted for "Tariq Saeed" respondent. It is admitted by all the learned counsel for the parties at the Bar that vehicle No. KAX-7626 is not a' jeep, but a Toyota Car. So far as the name of Tariq Aziz, as one of the culprits is concerned, it is admitted that the name was subsequently changed to Tariq Saeed. I further find that certain interpolations have been made in the police papers, and the name has been substituted by "Tariq Saeed." So far as Mir Ajab Khan is concerned he, according to the prosecution case itself, reached the scene of offence, on scooter, after the jeep reached there. It is not even alleged that he was armed with any weapon, or that he caused any injury on any of the victims. It is an admitted position not only from the papers before me but also, as confirmed by the learned counsel at the Bar, that there are two hostile groups among the Pathans to which case both the parties belong, and the accused party is hostile to the prosecution witnesses. Tariq Saeed respondent is not a Pathan, but it is alleged that he belongs to accused party.
7. These facts, in addition to the circumstances pointed out by learned Additional Sessions Judge, Karachi in the orders passed by him, do justify in my opinion, grant of bail to the respondents Syed Zia Abbas Tariq Saved and Mir Ajab Khan, for, their Lordships of the Supreme Court themselves in relation to Muhammad Aslam and others v. State (PLD 1967 SC 539) on which reliance was heavily placed by Mr. Abdul Wahab Khan, observed in Ch. Abdul Malik v. Sate' (PLD 1968 SC 349) that: "It must be made clear with all difference to the learned Single Judge (in the High Court who had relected the hail application) that no dictum or judgment of the Supreme Court has created any such hurdle in the matter of bail, as has been conceived by him in his order."
8. Their Lordships further explained: "It seems that the plethora of deference on the subject, each proceeding on its own particular facts and circumstances different from the other has produced a confusion of thought but there is no doubt whatever about the basic essentials governing this matter."
9. According to their Lordships in dealing with an application for bail: 'The Court is not called upon at that stage to conduct anything in the nature of preliminary trial to consider the probability of accused's guilt or innocence. It has nevertheless as a necessary part of its functions namely to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded to look on the materials placed before it by the investigating agency and be prima facie satisfied with some tangible evidence can be offered which if left un-rebutted may lead to the inference of guilt before it can come to the conclusion that this discretion no longer exists. This evidently means that the discretion of the Court in refusing bail in cases of offences punishable with death or transportation is wrested away only after the investigating agency satisfies the Court prima facie that there are reasonable grounds to the case which if not rebutted would lead to the inference of guilt of accused persons."
10. "As repeatedly laid down by this Court grant or refusal of bail in non-bail-able cases is a matter of discretion with the primary Court, which is inquiring into or trying the case. This discretion has to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberties of the people who are accused of criminal offences."
11. Their Lordships further emphasised that In exercising discretion In bail cases involving offences punishable with death or transportation, bail is to be allowed if it is shown that there are reasonable grounds to believe that the accused has committed such an offence, the question whether reasonable grounds exist, or do not exist, is to be decided by looking at the material placed by the prosecution in order to see whether some tangible evidence is available, which, if un-rebutted, may lead to the inference of guilt. The caution in this regard which is to be emphasised is that reasonable grounds are not to be confused with mere allegations, or suspicions, nor the tested or proved evidence, which law requires for founding guilt for the offence with which the accused is charged.
12. PLD 1972 SC 277) their Lordships of the Supreme Court noticed that the High Court in rejecting the bail application had not examined the statements of any other prosecution witness, except for only one of them, and, therefore, directed the petitioner to renew his application for bail before the learned Single Judge in the High Court, who was to consider the whole case for the purpose of bail on the data that was available. Their Lordships observed that "even for the purpose of bail law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused."
13. I am, therefore, clearly of the opinion that in granting bail to respondents Syed Zia Abbas, Tariq Saved anal Mir Ajab Khan, learned IInd Additional Sessions Judge, Karachi has exercised the discretionary powers vested in him under law on the basis of the principles which are well settled, and have, indeed been followed by the High Court of the Supreme Court of Pakistan, in several cases. I can, therefore, find no fault with the impugned of order passed by the learned II Additional Sessions Judge, Karachi, and dismiss these three applications.