This is an application for grant of bail to Pehlwan Khan and Ashiq Hussain, petitioners, in a case under section 302/148/149, P.P.C. Registered at Police Station Kharian, vide F.I.R. No.577 of 1990.
2. The prosecution case is that the petitioners and six others, in furtherance of their common object, committed the double murder of Raja Fazal Ali and Sain Ahmad on 12-12-1990 near Sheerin Masjid Kharian. The co-accused, namely, Iftikhar Hussain and Abdul Rauf fired fatal shots hitting Raja Fazal Elahi and the co-accused, namely, Muhammad Arshad and Sanaullah caused fire-arm wounds to Sain Ahmad deceased. The petitioners allegedly fired ineffective shots from rifles.
3. The investigation revealed that the petitioners were not present on the spot at the time of occurrence although they were party to the conspiracy of the murder of the deceased.
4. The learned counsel for the petitioners submitted that the petitioners have falsely been involved in the case; that they were not present on the spot at the time of accordance; that at the time of occurrence, they were confined in the jail situate in Azad Kashmir and the allegations that the two deceased were killed at the instance and with the connivance of the petitioners is afterthought.
5. Conversely, the learned counsel for the State assisted by the learned counsel fox the complainant has opposed this application on the grounds that the bail cannot be granted on the plea of alibi; that the two eye-witnesses, namely, Abdul Ghafoor and Haq Nawaz, in their statements under section 161, Cr.P.C., have stated that they had seen the petitioners firing ineffective shots at the time of occurrence; that it was a day time occurrence and there was no difficulty in the identification of the offenders and that the police has collected evidence in support of the charge of conspiracy against the petitioners. He has relied on cases PLD 1974 SC 83 and 1981SCMR849.
6. I have considered the matter carefully. I feel persuaded to accept this application for the reasons that according to the F.I.R., the petitioners were present at the place of occurrence and had fired ineffective shots, but during the investigation, it was found that the petitioners were not present on the spot but, were detained in the judicial lock-up in Azad Kashmir at the time of occurrence. The allegations that' the petitioners were party to the conspiracy of the double murder are not mentioned in the F.I.R. And that the report under section 173, Cr.P.C. Shows that the petitioners have been challaned on the charge of conspiracy and not on the charge of their presence and participation in the occurrence.
7. Without making any expression of opinion lest it may prejudice the merits of the case, I feel that a case for the grant of bail to the petitioners is made out, so they will be released on furnishing bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner /Duty Magistrate, Kharian.