The five respondents are facing enquiry in a case under section 148/ 302/307/149, P. P. C. Registered against then and some others on 18th July 1973, at Police Station Dina and were admitted to bail by the Ilaqa Magis--trate on 10th October 1973. The Sessions Judge, Jhelum, when moved under section 497 (5), Cr. P. C. For the cancellation of their bail having declined to interfere the private complainant has approached this Court questioning the correctness of their orders as illegal and unjustifiable in the circumstances of this case.
2. A notice was, therefore, issued to them to show cause why the bail granted to them should not be cancelled and have heard their counsel today.
3. It was alleged that on 18th July 1973, at digarwela the five respon--dents and their four co- accused formed themselves into an unlawful assembly with the common object of committing the murder of Tariq Sultan (deceased) and his father Muhammad Akram (P. W.) laid in ambush for them in a low lying strip of the Kacha path whereon they were expected to pass on the eventful evening and actually attacked them resulting in this murder. Muhammad Sarwar, their co- accused, on seeing Tariq Sultan (deceased) and his father approaching exhorted Muhammad Hafiz, his co-accused to fire from his gun as they were within his range at that time, who complied.
The shot hit Tariq Sultan and one of the pellets also caused injury to his father Muhammad Akram, who was following him at some distance. Both of them then crawled towards a kithri in the nearby graveyard, but all the respondents and their co-accused gave them a chase in the course of which Muhammad Afzal and Farooq (their co-accused) fired one shot each injuring Tariq in his chest and abdomen. They, however, succeeded in reaching and taking shelter in that kithri by bolting its door from inside. The report of these shots attracted some persons from the neighbourhood who intervened and saved them from any further harm at their hands otherwise they would have killed both of them after breaking open the door of that kitha. After their exit from the scene of this deadly assault Muhammad Akram P. W. And Tariq Sultan (deceased) then in injured condition, were removed to their house. Out of the fear of a second attack they could not move out during the night and were carried to Civil Hospital, Jhelum next morning, and after taking the two medico- legal reports with him Muhammad Akram P. W. Lodged a report at Police Station Dina at 10-30 a.m.
About it.
4. The five respondents were duly named in this report for having joined this ambush and subsequent chase of their victims with deadly weapons in their hands indicated their active participation and due contribution to the common object of their unlawful assembly which as spelt out from the motive, the nature of the weapons used, the manner of their well planned A attack, their hot chase and consequent injuries suffered by Tariq Sultan could be nothing short of his murder he had actually succumbed to these injuries later in the hospital. It was not necessary that each one of them should have used his weapon when the desired object was achieved by the three gunshots fired by their co-accused,
5. There was a serious land dispute between the parties over which they were litigating with each other during those days. A copy of the stay apple--cation filed by Abdul Karim, their co-accused on the day before would disclose that tempers were quite high as each party was asserting their posses--sion over the land in dispute, which had culminated in this attack on the complainant party. It appears from the order dated 18th July 1973 on that application that they were returning from the Courts and were waylaid on that very day. In these circumstances it could, not be urged that there was no ground to believe that they were guilty of an offence punishable with death or transportation as each one of them, if proved, to be a member of this unlawful assembly would be equally liable for this murder. I am fortified in taking this view by the observations made by their Lordships of the Supreme Court In re: Muhammad Ashiq v. Muhammad Tufail (Criminal Appeal No. 55 of 1973).
6. The learned Magistrate had, therefore, gone beyond the scope of his authority in allowing the concession of bail to them at such an earl stage of the investigation as even the challan had not been not in Court so far. He had rather decided the fate of the entire case by expressing his, views about the motive, their common object and the part played by the respondents in the affair. The learned Sessions Judge, had likewise fallen into an error in refusing to interfere although he had felt that it was inexpe--dient for the Magistrate to have gone to that extent. I have, therefore, to accept this petition and setting aside the impugned order cancel the bail granted to the five respondents (Abdul Karim, Feroze Khan, Mohabbat Khan, Muhammad Akram and Muhammad Bashir) in this case, who are directed to surrender to their bail bends.