This order shall dispose of Cr. Misc. Nos. 4410/13 and 4411/13 of 1974. The petitioner in the first petition is Muhammad Ashraf, and there are two petitioners, namely, Pervez Akhtar and Javed Masih in the second petition. These three petitioners along with Bashir, Rehmat and Inayat have been accused of the commission of offences under sections 302, 307 and 449 react with section 34, P. P. C. In this incident, one Mst. Rabia Kumhari lost her life and her two sons, Bashir and Rashid received firearm injuries.
2. The occurrence took place on tier night between 23rd and 24th of September 1974, at 1 a.m. The report was lodged by Mst. Sughran Bibi, a daughter of Mst. Rabia Bibi, deceased, in Police Station Kunjah at 2 a.m. The distance between the place of occurrence and the Police Station is six furlongs,
3. The first informant in her report stated teat Rehmat, his son Bashir and his son-in-law, Inayat, had committed the offence. She attributed the fatal injury on the person of Mst. Rabia Bibi to Inayat.
Bashir is said to have fired with a revolver on Bashir and Rashid, the two sons of the deceased.
Bashir was arrested on 30th of September 1974, is said to have made a statement involving the petitioners in both these applications. He appears to have attributed the fatal injury to Muhammad Ashraf petitioner, in Cr. Misc. No. 4410/8 of 1974. He further appears to have stated that Pervez was armed with a revolver and he and Javed kept guard on the door when the, offence was being committed.
4. The petitioners were arrested on 4th of October 1974. On 14 of October 1974, two persons, Mirza Muhammad Husain and Ghulam Hussain appeared to state before the investigating Officer that they had seen the three petitioners receding from the scene of the crime. They further stated thatth they had come to know that Rabia Kumhari had been done to death but kept quiet because the complainant party did not name the petitioners. Pervez is said to have made a confessional statement in the presence of his co-accused Javed to Muhammad Khalil and Muhammad Din P.
Ws. On 9th of October 1974. It is also said that Muhammad Ashraf led to the recovery of a 'chhurra'.
5. The petitioners approached the Sessions Court for grant of bail. Muhammad Shafi, Sessions Judge, Gujrat, dismissed their bail application by order dated 5th of November--- 1974.
6. It is urged by Mr. Ataullah Qureshi, the learned counsel for the petitioners in both these applications, that the story of the first informant completely omits the presence of' the three petitioners and the subsequent discovery by the police from the mouth of Bashir, their co-accused does not directly connect them with the commission of the offence. It is further his submission that the Wajtakkar witnesses on their own admission after having known immediately after the occurrence that the three petitioners were involved in the commission of the offence, kept quiet for about twenty days, and appeared before the police five days after the arrest of the petitioners. As to the extra judicial confession, alleged to have been made by Pervez, the learned counsel submits that these two witnesses, namely, Muhammad Khalil and Muhammad Din had actually produced the three petitioners before the police. It is his submission than this extra-judicial confession made after about a fortnight of the occurrence cannot be considered to be a ground for believing that the petitioners were privy to the commission of the offence. As to the recovery it is submitted that they were made on 14th of October, 1974 i.e. Five days after their arrest. It is urged that the recoveries even if genuine do not connect the petitioners with the commission of the offence, especially, when the first informant has completely eliminated their presence at the spot.
7. In my view, the case of the petitioners falls within subsection (2) of section 497, Cr. P. C. And requires further inquiry. The fatal injury is now attributed to Muhammad Ashraf but as the first informant does not name him at it all, it cannot be said before any evidence is brought on the judicial record to that effect that the petitioners have committed an offence punishable with death or imprisonment for life. I, therefore, direct that the petitioners in both these petitions shall be released on bail in the sun: of Ps. 20,000 (Rupees twenty thousand) each with two sureties in the sum of Rs. 10,000 each to the satisfaction of the Assistant Commissioner, Gujrat.