JUDGMENTMUHAMMAD AQIL MIRZA, J.- Bail is sought in a case registered at police station Qadirabad District Mandi Baha-ud-Din vide FIR No.112 dated 10.10.1993 for offences under Section 302/148/149 PPC.
2. Two persons, namely Bashir Ahmad and Khalid have been murdered in this case. The allegations made in the FIR are that when the two deceased were passing near the drawing room of Wali Muhammad six persons, namely Ikramullah armed with Klashnikov, Mukhtar Ahmad petitioner armed with Klashnikov, Irshad Ahmad armed with rifle, Mahboob Ahmad petitioner armed with rifle, Nazir armed with gun and Mukhtar son of Rasheed armed with gun came out of the drawing room and attacked the deceased persons. Ikramullah fired with his Klashnikov which hit Bashir Ahmad on his right hip. Mukhtar Ahmad petitioner fired with the Klashnikov which hit Bashir Ahmad deceased on the back side of his chest. Similarly, Mahboob petitioner fired with his rifle which hit Khalid deceased on the hip. Irshad co-accused also fired which hit Bashir on his right hand. Khalid and Bashir after having been injured fell down on the ground. They were not allowed to be taken away by the co-accused Sheraz, Walayat, Muhammad Aslam, Said, Nasrullah, Bashir, Mian Ahmad and Khizar Hayat, who all were armed with deadly weapons. Finding that Bashir and Khalid had died, all the accused persons started dancing around the dead bodies in jubilation and then went away while firing in the air. The deceased had enmity with Ikramullah co-accused.
3. Learned counsel for the petitioner states that there were five investigations in the case and 12 persons excluding the petitioners were declared innocent. In these circumstances learned counsel contends that version of the complainant having been disbelieved by the investigation agencies to a large extent, it has become a case of further inquiry so far as the petitioners are concerned and, therefore, they are entitled to be enlarged on bail under Sub Section (2) of Section 497 Cr.P.C. It has been further contended by the learned counsel, placing reliance on Muhammad Ismail versus Muhammad Rafique and another (PLD 1989 Supreme Court 585) that even if the trial has already commenced, bail can not be withheld because practice can not be followed where the bail is available as a matter of right. Reliance in this behalf has also been placed or Amjad and another versus The State (1982 SCM R 955): In the precedent case of Muhammad Ismail, the bail was granted to the accused person by the High Court on the basis of opinion of innocence by the D.S.P.
A plea was taken that it was against the established practice of the superior Courts not to grant or cancel bail in a murder case when the trial is to commence within a short time and the date is already fixed. It was in these circumstances that following observations were made by the learned Supreme Court:- "The question then arises; whether, Sub-section (2) of section 497 Cr.P.C, would have operation notwithstanding the aforestated practice of this Court.Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under sub-section (2) of Section 497 Cr.P.C, the same can not be withheld on the ground of practice; because, the latter is relatable to the exercise and grant of right." The learned counsel for the petitioners submitted that no sanctity can be attached to the version given in the FIR in view of the fact that it has been found to be false with regard to the majority of the accused. He submitted further that the petitioners have only been attributed one injury each on the leg of the deceased.
We issued a notice to the State and have heard the learned counsel for the parties. We do not propose to discuss the merits of tin case but feel that in the circumstances of this case the two petitioners are enutled to grant of bail. We, therefore, convert the petition into appeal and allow the same."
4. On the contrary learned counsel for the complainant has vehemently opposed the bail and submits that there have been five investigations in this case but both the petitioners have been found guilty in all the five investigations. So far as petitioners are concerned there appears reasonable ground to believe that they are guilty of causing death of the two deceased persons.
Learned counsel further contends that no doubt twelve accused persons were declared innocent by the police, but that was done mala fide because of immense influence of Ikramullah Ranjha co- accused who has been Member of the Provincial Assembly twice. The complainant has already moved this Court in revision against the ing the 12 co-accused persons. Learned State counsel submits that the trial before the learned Special Court as already commenced and it will not be in the interest of justice if the petitioners are enlarged on bail at this stage of the trial.
5. We have given anxious consideration to the respective contentions raised by the learned counsel for the parties. Both the cases relied upon by the learned counsel for the petitioners are not attracted in the present case. In the case of Muhammad Ismail, bail was granted on the basis of opinion of innocence made by the D.S.P, and it was in that context that the Honourable Supreme Court found that the bail had been earned as of right by the accused person, and the practice of refusing bail when the trial has commenced is not to be followed where bail is available as a matter of right. In the present case, however, in all the five investigations conducted in the case both the petitioners have been found guilty of committing murder of two persons. The case of Amjad is also distinguishable. That case appears to have been decided in its on peculiar circumstances.
6. We are of the opinion that where the accused person is concurrently found guilty in the investigations held by the police and there are no other patent circumstances available on the record, creating doubt of innocence in his favour, then the case of such an accused person falls within the prohibitory clause of subsection (1) of Section 497 Cr.P.C. Such person cannot claim bail as of right under sub-section (2) of this Section. In the instant case, however, prohibitory clause of sub-section (1) of Section 497 Cr.P.C, is fully attracted. No case has been made out that there exist reasons for believing that the petitioners have not committed the heinous crime alleged against them. Case of the petitioners is not covered by sub-section (2) of Section 497 Cr.P.C, and, therefore, they are not entitled to the grant of bail as a matter of right. We are further of the view that since the trial has already commenced it will not be proper to release them on bail. Both the petitioners have been attributed direct role of causing injuries to the deceased with their respective weapons, namely, the Klashnikov and the rifle. Resultantly, the bail application is dismissed. Needless to state that the observations made herein are tentative in nature and shall have no effect on the merits of the case.