ORDER RASHID AZIZ KHAN, J.- Petitioner Syed Tasneem Nawaz Gardezi and Sh. Abdul Rahim have filed two separate petitions, bearing Crl. M.No.884-B/96 and Crl.M.758-B-of 1996, respectively, seeking bail in a case registered with Police Station Qaimpur, District Bahawalpur vide FIR dated 15.11.1995 for offences under sections 148/302/324/427/109 and 149, PPC. Since both the applications arise out of the same FIR; therefore, shall be disposed of by this order.
2. Prosecution story in brief, as disclosed in the FIR registered on the basis of a written application, submitted by Sajjad Hussan was to the effect that on 15.11.1995 at about 11 A.M. First informant with his father Shah Nawaz Pirzada was present at their Dera with Karam Hussan Khan, Musthaq Hussan Khan, Ali Khan. Muhammad Suleman, Mian Mazhar Hussan, Haji Allah Yar and another, In the meanwhile, a white-coloured Suzuki-Jeep Potohar entered their Dera. Five terrorists emerged armed with kalashnikovs and started firing at the first informant's father. On account of said firing Shah Nawaz Pirzada and Karam Hussan Khan die at the spot. People sitting next to then, namely, Mushtaq Hussan Khan, Ali Khan and Muhammad Suleman got injured. Ali Khan subsequently died.
Thereafter the assailants started firing at the car of the first informant and rendered it out of service so that they may not be followed. According to the first informant, Syed Tasneem Nawaz Gardezi petitioner, Zia-ur-Rehman Farooqi and Maulana Azim Tariq were responsible for the attack. Earlier, first formant's father was subjected to murderous assault, which was carried out at the instance of the above named persons, for which a case also registered. Even the present occurrence took place on account of the above named three persons. Motive for the occurrence was that Tasneem Nawaz Gardezi had long standing enmity with the first informant's father, and Maulana Zia-ur- Rehman Farooqi as well as Azam Tariq, members of Saiph Sehaba, had many as time threatened first informant's father in order to take revenge for the murder of one Yahya. Even on the day of present occurrence presence of Tasneem Nawaz Gardezi near the spot was established. The occurrence was witnessed, apart from the first informant, by Mian Mazhar Hussan, Rab Nawaz, Haji Allah Yar and Muhammad Ramzan. The witnesses could identify the assailants if brought in front of them. Apart form the accused persons named above, the occurrence had also taken place on account of conspiracy committed by Maulvi Yasin. Maulvi Abdul Ghani with Sh. Abdul Rahim and Khadim Hussan Shah.
3. It was contended by learned counsel for the petitioners that a bare reading of the FIR indicates that both the petitioners were neither present at the spot nor any overt act has been ascribed to them. Contended that the only evidence against the petitioners is the statement of Gul Muhammad who stated that he heard the accused persons conspiring a marriage party. Asserted that no reliance on such a statement can be placed. Argued that two other witnesses, namely, Muhammad Akbar and Akthar allegedly saw the petitioners handing over Kalashnikovs to the assailants who subsequently committed the said murders. Asserted that another person, namely, Abdul Majeed was arrested and his confessional statement was recorded for months after his arrest and his statement under section 164, Cr.P.C, was recorded on oath which Js inadmissible. It was argued that apart from the evidence mentioned above, there is no other evidence which could connect the petitioners with the alleged occurrence even remotely. Argued that the evidence so far collected does not inspire confidence nor it appeals to reason because it, on the face of it, appears that it is nothing but padding.
The contentions were opposed by learned counsel for the complainant as well as learned Assistant Advocate General for the State. They stated that at this stage minute scrutiny of the prosecution evidence is not possible. The mere fact that both the petitioners are named in the FIR as well as by the witnesses whose statements were recorded the same day is sufficient for purposes of disallowing the petitions.
4. We have heard both the sides at length and gone through the file in detail. First informant got the case registered for the present occurrence by means of a written application. He had asserted that the murders were committed on the abetment of the petitioners and some others. In the FIR neither any witness of abetment is mentioned nor first informant chose to disclose his source of information regarding the conspiracy for murders. Similarly, time and place of abetment is not mentioned.
As far as the witness of conspiracy of murders is concerned, the police on the day of occurrence recorded the statement of one Gul Muhammad who deposed that he was serving the guests at a wedding party where all the accused mentioned in the FIR were also present'. Within his hearing they conspired to commit the murder of Shah Nawaz Pirzada. We have noticed that, prima facie, the statement of this witness does not inspire confidence because, according to him,^he had informed Shah Nawaz Pirzada, deceased regarding the conspiracy which was committed on 13.10.1995, yet he is not mentioned in the FIR. It is asserted that it cannot appeal to reason that grown-up respectable people would sit together at a marriage party and start conspiring for the commission of murders.
5. As far as Muhammad Akbar and Akhtar, witnesses, are concerned, according to their statements they followed a jeep which went to the factory of Sh. Abdul Rahim, petitioner, where at the gate Tasneem Nawaz Gardezi and Sh. Abdul Rahim gave a Kalashnikov each, whereafter they went away. We find there is substance in the argument of the learned counsel for the petitioners that if at all the petitioners had to supply them arms they could have asked the jeep to come in i.e the factory which was owned by Abdul Rahim petitioner. Both the petitioners coming out to the gate to hand oyer Kalashnikovs within the view of general public becomes unnatural. Even otherwise, it is yet to be determined who were the unknown persons who were given Kalashnikovs by both the petitioners. Neither any identification parade has been held so far nor there is any evidence to indicate that the Kalashnikovs were handed over to the assailants. The police during investigation arrested one Abdul Majeed who remained in custody for for months and thereafter his confessional statement under section 164 Cr.P.C, was recorded. Learned counsel has pointed out that the confessional statement Was recorded on oath, which, according to the judgments of Supreme Court, because inadmissible. Even otherwise, we have noticed that the same person also filed a writ petition, bearing W.P.No. 1260 of 1996 in the Lahore High Court, Bahawalpur Bench asserting that on account of brutal torture his confessional statement was got recorded by the police which he disowns as the same was not made by him voluntarily. He had filed an affidavit as well accompanied with the writ petition. In view of this situation,~no reliance on the confessional statement can be placed. Learned counsel for the petitioners had also asserted that during investigation they had filed number of affidavit of Advocates refuting the prosecution case. We have noticed that the affidavits are available on the police file. Though, according to the learned Assistant Advocate General, the deponents were summoned to associate with the investigation but none of them appeared.
The upshot of the above discussion is that we are of the considered view that it is a case of further inquiry as far as both the petitioners are concerned, which entitles them to the concession of bail.
Therefore, both the petitioners, namely, Syed Tasneem Nawaz Gardizi and Sh. Abdul Rahim shall be allowed bail provided each of them furnishes security in the sum of Rs.5 lac (Rupees five lacs only) with two sureties, each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.