This is the fourth bail application moved by Qamar Din in this Court in a murder case.
2. On the 28th of December, 1971 a case under section 302/307/148/149/34, P. P. C. Was registered at the Police Station Nawan Kot, Lahore on a report made by Shah Din against Khushi Muhammad and men others including the petitioner. The case of the prosecution is that on the 28th of December, 1971 at 2 p. m. Shah Din came to the hotel of Muhammad Azim for tea. On arrival at the hotel he saw Khushi Muhammad, Bashir alias Bokola, Muhammad Bashir alias Mohni, all the three armed with guns raised lalkaras outside the hotel to kill Azim and others. Qamar Din, Kala and Arif armed with dangs and Allah Ditta with a hockey belaboured Muhammad Amin and Parvaiz in the hotel. In the meanwhile, Hassan Din, a brother of complainant and Muhammad Rafique, his cousin, arrived at the scene and pleaded with all the co-accused to desist. But Khushi Muhammad and Bashir alias Bokola both fired on Muhammad Amin who was hit and fell down. Muhammad Bashir alias Bakila also fired at Hassan Din who was hit in the abdomen. All the three accused then entered the hotel and fired on Muhammad Nawaz who was also hit. The accused then took to their heels. Muhammad Amin succumbed to the injuries received by him.
3. On the 8th of May, 1972, Qamar Din petitioner applied to this Court (Criminal Misc. No. 977-B of 1972) for bail. But on the 2nd of June, 1972, my learned brother M. A. Zullah, J. After hearing the parties rejected the application. It was contended before him on behalf of the accused that the occurrence consisted of two incidents. One outside the hotel relating to the murder of Muhammad Amin and the other amounted to an offence under section 307, P. P. C. Or a lesser offence. It was suggested that all those accused including the petitioner who were inside the shop were armed with dangs and hockey and could not be held liable for the murder with the other accused persons.
But my learned brother repelled the contention and dismissed the bail application.
4. Afterwards on the 19th of July, 1972, the petitioner filed a second application (Criminal Misc. No. 1745-B of 1972) for bail. This was put up before me during the summer vacations. I found no good reason to enlarge the petitioner on bail and rejected the application. At the same time I observed that the petitioner was in jail since 8th of January, 1971, and in the interest of justice I directed the learned Magistrate to expedite the enquiry before him by a day-to-day hearing if possible.
5. Thereafter the petitioner then filed a third application (C. M. No. 2828/B of 1972) for bail in this Court on the 16th of October, 1972, this was dismissed by my learned brother Mushtaq Hussain, J.
With the observation that the delay in the completion of the enquiry by the Magistrate was more than partly caused by the adjournments sought by the accused himself. In these circumstances he found no justification to enlarge the petitioner on bail on the ground of any delay in the enquiry proceedings.
6. The petitioner has once again filed the above application (C. M. No. 304/B of 1972) for bail. This has been sent to me for disposal. I have heard the learned counsel for the parties in this application. It is now admitted that is the mean while the learned Magistrate has recorded the evidence of the prosecution produced before him in the course of the enquiry. But according to the counsel for the petitioner the defence evidence is likely to take some time more. He maintains that the petitioner is in jail for more than a year by now with no hope for an early completion of the enquiry. The learned counsel for the petitioner has pointed out to me that Khushi Muhammad one of the principal accused, who was said to be armed with a gun and was responsible for the fatal gunshot injuries to Muhammad Amin deceased, was allowed bail by this Court on the 10th of July, 1972. The learned counsel maintains that from the prosecution evidence the petitioner could not be held to be vicariously liable for this murder and in these circumstances there was no valid reason for refusing the bail to him.
7. But in these proceedings I have purposely refrained to discuss the prosecution evidence and to express any opinion on the merits, suffice it to mention here that on the averments by the prosecution a case under sec--petition 302/307/148/149/34, P. P.C. Is disclosed against all the co- accused includ--ing the petitioner. In this connection my learned brother M. A. Zullah, J. In rejecting the bail application of the petitioner in Criminal Misc, No. 977-B 1972 observed :- "Learned counsel has, in his brief, copies of statements made by Muhammad Azeem and Pervez under section 161, Cr. P. C. A perusal of those statements shows that according to tire prosecution all the accused, whether armed with fire-arms or other weapons, including the petitioner acted in prosecution of a common object and it was in that connection that the petitioner together with some of his co-accused caused injuries to Muhammad Azeem and Pervez while another set of accused persons, who were armed with guns, fired at those who came to help Azeem and Pervez. If this is the prosecution case and is claimed to have been supported by eye-witnesses who are injured, it cannot be said that the petitioner's case is not covered by the prohibition contained in subsection (1) of section 497, Cr. P. C. I, therefore, find no merit in this petition and the same is dismissed."
8. In Criminal Misc. No. 1475-B of 1972, on the 12th of July, 1972, Muhammad Afzal Cheema, J. Granted bail to Khushi Muhammad. He bad raised a plea of alibi and produced several witnesses in support thereof before the investigating officer and according to this instruction he directed that his name should be placed on column No. 2 but he was sent up along with the other co-accused under the order of the Superintendent of Police. Even otherwise the Court significantly observed that Khushi Muhammad accused was said to have used his licensed gun which was recovered from him by the police but it was not found to be wedded to the crime empties recovered from the spot as admitted by the investigating officer.
9. In these circumstances the case of the petitioner is distinguishable from that of Khushi Muhammad co-accused who was enlarged on bail. In this case also a plea of alibi has been advanced on behalf of the petitioner It is stated that he was not even present at the scene of occurrence in Lahore at the time. He is alleged to have executed an agreement to sell immovable property to one Aftab Ahmad on the 28th of December, 1971, at Lyallpur through a deed-writer. A copy of this agreement has boon produced before me. The onus to establish this plea rests on the petitioner. This has ye to be proved and it is too early to express any considered opinion in the connection. In my opinion at this stage in the absence of any evidence recorded on this part of the case the petitioner cannot be allowed bail.
10. The learned counsel has also relied on Hanzoor Khan v. Kamir and S others (1972 SCMR 207). In that case it was observed that under trial prisoners, including those charged with capital offence cannot be kept without trial for inordinately long period without satisfactory explanation or reason to justify that action. But in that case no concrete steps were taken to finalize the enquiry within a reasonable time and the facts are distinguishable. Each case must be decided on its own facts and no hard and fast rule can be laid down in this respect. In Allah Baksh v The State (1969 P Cr. L J 185) successive bail applications were refused by the High Court. The enquiry before the committing Magistrate was almost nearing completion and in the circum--stances the Supreme Court agreed with the High Court and refused to grant bail by being drawn into the controversy about the merits of the prosecution case to determine the guilt or the innocence of the petitioner.
In the instant case the prosecution evidence has already been recorded in the course of the enquiry which is nearing completion now. There is no compelling reasons to enlarge the petitioner on bail before the conclusion of this enquiry.
11. For the foregoing reasons I do not think this is a fit case for bail to the petitioner at this stage, I, therefore, reject this petition.