Asad, Pervez, Manzoor Hussain and Haider A.I petitioners have applied for bail before arrest in case FIR No. 80 of 1995, dated 22-6-1995, offence under section 302/109, P.P.C., P.S.- Chung, District Lahore. The case was registered on the statement of Anwar A.I complainant on the same day at 7- 30 p.m. The complainant briefly alleged in the F.I.R. That he was a resident of village Manowal. On 22-6-1995 at 6 p.m., he, Muhammad Arshad and Mukhtar Ahmad P.Ws were present at the platform of the shop of Noor Muhammad Khokhar in village Manowal. Noor Muhammad shopkeeper had gone to his house. Munawar A.I brother of the complainant, came to the Chowk on a tractor. In the mean time, Mubashir alias Goga son of Manzoor Hussain came on a motorcycle and stopped the same in front of the tractor. Mubashar alias Goga accused fired two shots on Munawar A.I with his .12 bore gun. The fire hit face, temporal regions, shoulder and hands of Munawar A.I and he succumbed to the injuries. Mubashir fled away from the spot on foot while abandoning his motorcycle. The motive for the offence stated was that 40/45 years ago, the complainant party was involved in the murder of the great grandfather of Mubashar accused. Due to that grievance, the accused in consultation with his brother Asad, uncle Pervez father Manzoor Hussain and grandfather Haider A.I, committed the murder. In 1990 Mubashir alias Goga injured the complainant by firing and that case is pending in a Court.
2. The post-mortem examination was conducted on 23-6-1995. The report corroborated the fire- arm injuries described in the F.I.R. During investigation, the I.O. Recorded the statement of Ghulam A.I resident of village Julyana on 24-6-1995, who claimed that 1/2 days before the occurrence, he visited Malowal village to purchase a buffalo and went to the Haveli of the accused. All the accused/petitioners alongwith Mubashar were sitting outside the house, in a veranda. Mubashar accused was openly saying that he will not spare the deceased. The I.O. On 30-6-1995 recorded the statement of Muhammad A.I resident of Muridwal. The witness claimed in his statement that 2/3 days prior to the occurrence, he was going to the house of his maternal relations (Nanyal).
When he passed near the under-construction house of the accused, he saw the petitioners and Mubashar sitting on the road-side. He heard Pervez accused saying that out of Anwar A.I and Munawar A.I, one should be finished. He claimed that he narrated this incident to the son of Munawar A.I but he in turn forgot to tell his father (the deceased).
3. Except Pervez, the three accused petitioners applied for bail before arrest in the Court of Sessions Judge on 26-6-1995. They remained on interim bail till their application was dismissed on 12-7-1995 by the learned Additional Sessions Judge, Lahore. As the application for bail of the three petitioners was dismissed, therefore, prayer for bail of Pervez was also entertained alongwith others.
4. Learned counsel for the petitioners inter alia submitted that Muhammad Yar, S.H.O., P.S. Chung was a personal friend and Pir-Bhai of Muhammad Anwar complainant. It was the complainant and the SHO, who falsely involved the grandfather aged 68 years, the father, the uncle and brother of the main accused i.e. Mubashar alias Goga, in the case. Numerous respectables of the village contacted the SHO and protested against the implication of the petitioners in the case but he refused to record the defence evidence. Consequently, the D.I.-G. Lahore transferred the investigation of the case to a senior police officer i.e. Maj. (Retd.) Mubashar Ahmad, S.P., Lahore.
5. The learned counsel submitted that motive was far-fetched and too old at least for the petitioners to encourage Mubashar alias Goga accused for the murder of the deceased. Mubashar alias Goga accused was an insolent and head--strong young man and was not under the control or discipline of the family members. He was not even on speaking terms with the petitioners for many months before the occurrence.
6. Learned counsel submitted the petitioners were law-abiding sand respectable Zimindars. Pervaiz petitioner had left the village about a year ago and was living in Gulberg with his family.
7. Learned counsel submitted that with regard to the consultation/abetment Rana Muhammad Yar, Inspector recorded the statements of Ghulam A.I, P.W. On 24-6-1995 and Muhammad A.I P.W. On 30-6-1995. Ghulam A.I P.W. Was resident of village Julyana, situate at a distance of 4/5 miles from the place of occurrence. His claim of visiting the house of the petitioners was not believable. He was a personal friend of the complainant and jointly owned lands with him in Baseerpur, District Okara. Ghulam A.I P.W. Was the sister's son of the complainant and he joined the investigations of the case since 22-6-1995 but his statement was recorded as later as on 30-6-1995. These two witnesses were summoned by the S.P., they stated before him that the incident of consultation amongst the accused occurred 10/12 days prior to the occurrence. This was the serious contradiction of their earlier statements recorded by the S.H.O. The S.P. Conducted thorough probe with regard to the presence and version of these two witnesses and came to the conclusion that their statements were fabricated, bogus and not trustworthy.
8. Learned counsel further submitted that Mubashar Ahmad SP/I.O. Conducted thorough investigations by associating both the parties and their witnesses. Scores of the respectables of the village and the area appeared before the S.P. With regard to the respectability and innocence of the petitioners. The S.P. In his report, rejected the statements of two witnesses of consultation regarding the petitioners and reported that the petitioners were found innocent in his investigation.
He directed the S.H.O. To drop section 109 from the case and the petitioners be discharged.
9. Learned counsel submitted that the presence of the eye-witnesses was highly doubtful. No person from the place of occurrence claimed to have seen the occurrence. The I.O. Reported that motorcycle recovered from the spot, belonged to one Muhammad Aslam son of Nazir Khan. He was serving as a driver/Naik with Lt.-Col. Zaighem Islam. On 12-6-1995 one Muhammad Aslam son of Ghulam Qadir, his friend borrowed Motor-cycle No. LHW-2653 from him for a few days. According to the S.P.'s report, Muhammad Aslam son of Ghulam Qadir accompanied Mubashar alias Goga accused on 20-6-1995 and was present at the spot. The S.P. Directed the S.H.O. To associate said Muhammad Adam in the investigation and if found guilty he should also be challaned alongwith Mubashar alias Goga.
10. Learned counsel for the complainant vehemently opposed the grant of bail and inter alia submitted that there are statements of two witnesses regarding consultation/ abatement of the petitioners with Mubashar alias Goga accused in the case. The evidentiary value of these witnesses can only be assessed at the time of the trial. Learned counsel further submitted that the concession of bail before arrest in a murder case is an exceptional remedy, which should not be given in the present case. He argued that the main accused was absconding. Therefore, the concession of pre-arrest bail should not be given to the petitioners. Learned counsel relied on numerous authorities in support of his contentions.
11. I have heard the learned counsel for the patties at great length and have perused the record of the case. Against the petitioner there is an allegation of consultation with Mubashar alias Goga the main accused for the commission of murder. The statements of Ghulam A.I and Muhammad A.I against the petitioners is on record. Muhammad A.I, P.W. Is a real nephew of the deceased and was present on 22-6-1995 during the investigation of the case before the S.H.O. But his statement was recorded on 30-6-1995. The presence of Ghulam A.I in the village and hearing the conversation of the accused 1/2 days prior to the occurrence is a subject of serious doubts. The claim of suchlike witnesses regarding overhearing the consultation or conspiracy by the accused before the occurrence, was rejected by the superior Courts in the following cases:--- 1991 SCM R 322, 1988 M LD 652, 1985 PCr.LJ 2777 and 1983 PCr.LJ 1554 and 1787.
12. In my view the evidence of these two witnesses is contradictory and will be subjected to serious scrutiny at the trial stage. Their statements were also branded as doubtful by the S.P. In his report.
He has reported that charge of section 109 be dropped and the petitioners be discharged.
13. Mr. Mubashar Ahmad, S.P./I.O. Conducted thorough investigations in the case. He associated both the parties and numerous respectables of the village and locality during the process. In his final report, he found the petitioners innocent and directed for their discharge from the case. He further reported that the statements of Ghulam A.I and Muhammad A.I were not trustworthy. The findings of the I.O. With regard to the innocence of the accused was considered and the accused were granted bail in the following cases:--- 1970 SCM R 299, 1982 SCM R 440 and 1984 SCM R 429 and 521.
14. The question of grant of bail before arrest under section 498 read with section 497, Cr.P.C. In serious cases like murder was considered in the following two cases. In PLD 1989 SC 347 (Meran Bux v. State) the accused was named in the F.I.R. In a murder case and was granted bail before arrest.
The relevant portion of the judgment of the Supreme Court is reproduced:--- "that he is a landlord and businessm an and during the incident he was in Quetta on a business trip and that the police was trying to arrest him just to insult, humiliate and harass him. He further pointed out that the complainant has involved all the male members of the family i.e. All the three brothers and their cousin in the case.
Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gunshot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned. The High Court did not at all consider the case on merits though this Court in the case of Jamaluddin v.
State 1985 SCM R 1949 has observed at page 1952 of the report as follows: It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for interior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hasan's case. In our opinion, therefore, the order of the learned Sessions Judge did not in any respect, disregard the well-recognised principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke the suo motu powers for the purpose of cancelling the order of bail'."
15. In 1991 SCM R 322 State v. Mukhtar Ahmad, the accused was named in the F.I.R. In a double- murder case and there was allegation of hatching of conspiracy for the commission of the offence by him. He was granted bail before arrest by the Lahore High Court. The State went in appeal and the learned Judges of the Supreme Court upheld the order of the High Court. Learned counsel for the complainant relied on the following authorities:--- 1985 PCr.LJ 2987, 1986 M LD 2898, 1979 SCM R 567, 1991 PCr.LJ 595 and PLD 1983 SC 82.
16. I have gone through all these authorities quite minutely. I am of the view, that these authorities are not relevant to the facts of the present case. The view of the learned Judge of the Supreme Court in 1977 SCM R 27 can be quoted for guidance as under:--- "Great care and caution is needed in the invocation of authorities of the Supreme Court which by and large proceed on the peculiar facts of each case. Having regard to the vast variety and wide variance in the circumstances of cases and the indiscriminate application of a ruling given in one case to the facts of another, their Lordships of the Privy council felt the necessity of observing to in Louis Edouard Lanier v. The King LR 1914 AC 221 that "no rule can be laid down which would not necessarily be subjected to future qualification, and an attempt formulate any such might therefore, prove misleading. This note of caution was reiterated in Dennis Romain v. Attorney- General for Jersey AIR 1936 PC 160. Both these authorities were pointedly referred to in the Supreme Court's elaborate judgment in Noora's case."
17. In view of what has been stated above, the petitioners' case require further inquiry regarding their role in the commission of the offence. Their interim bail in the case is confirmed. The petitioners shall furnish fresh bail---bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C. City, Lahore.