Two cross-cases were registered at Police Station Nawan Kot, Lahore in regard to the same occurrence which took place at about 4. p.m. On the 9th of January 1969 in the premises of Bakar Mandi, Lahore, resulting in the death of two persons, Inayat belonging to toe Gujjar Party. According to the version given in the first case registered at the instance of Nawab Gujjar within half an hour of the occurrence, six persons, namely, Tai Din petitioner in Criminal Miscellaneous No. 5547/69, armed with pistol, Rafiq and Avub Ghauri armed with. Rifles, Qayyum alias Kumma armed with gun, Khuda Bakhsh alias Bullar armed with a pistol and one Abdul Aziz alias Jeeja who was empty-- handed, Commission Agents of Bakar Mandi, allegedly fired at Nawab, Hanif, Faqir Muhammad, Ilahia and Inayat resulting in the death of the last-mentioned two persons. The version as given by Taj Din petitioner in Cr. Misc. No. 5547/69, is that on 11-1-1969 at 10-45 a. m. Nawab complainant in the earlier case armed with a pistol, --Hanif alias Faqiru armed with a pistol, Bahia armed with a rifle, Inayat armed with a gun, Tori armed with a revolver and Faqir Muhammad empty-handed came fully prepared with the definite purpose of killing Taj Din and others with a view to wreak vengeance of the death of Jagga brother of Nawal who had been earlier killed in an encounter with the local Police assisted by Taj Din and his nephew 'Muhammad Ayub, who were awarded a Commendation Certificate, each along with cash reward of Rs. 200 and Rs. 100 each respectively.
Accord--ing to his own showing, Taj Din fired at the assailants with a revolver in exercise of the right of private defence and his companion Shafique alias Phheeko succeeded in picking up the gun of Inayat and started firing. In short, the version as set out by Taj Din purported to disclose a case of self-defence. On the basis of this report a case under section 148/307/149, P. P. C. Was registered against members of the opposite-party mentioned above. The two cases were partly investigated by Mr. Sultan Anwar, S. H. O., Police Station Nawan Kot, who was. Succeeded by Mr. Javed Bajwa, Sub-Inspector, and the investigation was verified by D. S. P. Illaga Sardar Zulfiqar Ali.
As a result of police investigation, Abdul Qayyum alias Kuuma, Muhammad Ayub Ghauri, Khuda Bakhsh and Jeeja were found to be innocent, their plea of alibi having found favour with the Investigating Officers and accordingly they were placed in column No. 2. The other two persons, namely, Muhammad Shafiq and Taj Din were sent up by the Police under section 304, P. P. C. And not under section 302, P. P. C. As alleged in the F. I. R.
Quite sometime after the submission of the challan in Court Hanif, brother of flahia deceased filed a private complaint under section 148/302/149, P. P. C. Implicating all the six accused of whom four had been found innocent by the Police as stated earlier. After having recorded some preliminary evidence, the learned Inquiry Magistrate issued non-bailable warrants for the arrest of all the six accused on charges under section 302/149, P. P. C., etc. At this, all the accused except Taja filed Cr.
Miscellaneous No. 3750/69 in the High Court seeking pre-arrest bail which was allowed by an order of my learned brother M. Jamil Asghar, J., dated 30-6-1969 on the grounds, inter alia, that Muhammad Shafique was not mentioned in the F. I. R. And that Kuuma, Muhammad Ayub Ghauri, Bullar and Jeeja were found innocent by the Police. His Lordship also made note of the fact that the petition had been filed directly to the High Court for the reason that application for bail earlier filed by Taj Din before the learned Sessions Judge had been dismissed. The matter came up before me for confirmation of' the interim bail allowed to the aforesaid persons, on 12-9-1969 when nobody either on behalf of the State or that of the complainant appeared to oppose confirmation.
Consequently the bail was confirmed by me. Two days later, however, Cr. Miscellaneous No. 5467/69 was moved before me on behalf of Muhammad Hanif complainant seeking cancellation of bail allowed to the accused persons on which Notice was issued to them.
2. Simultaneously with this Taj Din a co-accused of the respondents in Cr. Miscellaneous No. 5467/69 also moved an application for bail. Both the cases being connected matters are being disposed of by a single order.
3. In support of the petition for cancellation of. Bail it has been contended before me that the first ground which .Found 'favour with my learned brother M. Tamil Asghar, J. In allowing interim bail to the respondent-, was factually incorrect whereas the second was not legally tenable for the reasons that the Police was obviously mixed-up with the accused persons and as such the investigation being unfair, a private complaint per force had to be filed. It was argued that after having recorded preliminary evidence and having found a prima facie case against the accused-- respondents, the learned Inquiry Magistrate had quite justly and reasonably issued non-bailable warrants against them and as such bail should not have been allowed to them in a case of murder punishable with death or transportation.
4. In support of the first contention, it has been argued that although in the F. I. R. Lodged by Nawab the name of Shafique had been erroneously given as Rafique nevertheless --he had been rightly named in the complaint on the basis of which non-bailable warrants were issued against him and others, and furthermore in the counter-version emerging on the basis of the subsequent report lodged by Taj Din, he had admittedly fired at Ilahia, Inayat and others and as such there could be no doubt or dispute as to his correct identity.
5. While opposing the cancellation of bail, learned counsel for the respondents has drawn my attention to a chain of authorities wherein placing exclusive reliance on the investigation of the Police findings some of the accused persons innocent and placing them in column No. 2 the Courts allowed them anticipatory bail and in certain cases the Supreme Court refused to grant Special Leave to Appeal against orders of the High Court. Muhammad Iqbal and others v. The State (1968 P Cf. L J 1212), Muhammad Aslam and others v. State and another (1968 P Cr. L J 152), Muhammad Ibrahim v. The State (1969 P Cr. L J 111), Wall Muhammad v. Mian Muhammad Akbar Khan and 1 others (1969 P Cr. L J 1111) and Nadra v. Jamiat Khan and another (PLD 1968 SC 31) were particularly relied upon in support of the contention.
6. I also issued Notice to Mian Aslam Riaz Hussain, Additional Advocate-General who has taken the position that since the matter had emerged on the basis of a private complaint, the State is not, in a position to take a post stand one way or the other except that Taja and Shafique even though cent up under section 304, P. P. C. Would not however be entitled to bail for the reason that the offence is equally punishable with transportation.
7. Having considered the contention raised by the learned counsel for the parties, there appears to be no doubt as to the participation of Shafiq who was wrongly mentioned as Rafique to the F. I. R.
Though the mistake was later rectified in the complaint. Even otherwise from the own showing of his co-accused Taja, complainant in the cross-case, Shafiq alias Pheeko had also fought in self- defence having picked up the gun of Inayat deceased and used the same when the latter was wounded. Consequently, there could be no doubt or dispute as to his correct identity and participation in the occurrence. Notwithstanding therefore the fact that he 'has been sent up under section 304, P.P.C., which is equally punishable with transportation, I would cancel the bail allowed to him. Likewise, I would dismiss the petition .For bail filed by his co-accused Taj Din which would dispose of Cr. Miscellaneous No. 5547/69.
8. The case of the other respondents is, however, distinguishable. Keeping in view the chain of authorities cited by their learned counsel, I am not satisfied that a case is made out for the cancellation of their bail. Consequently, the petition ofthe cancellation of bail of Abdul Qayyum alias Kuma, Muhammad Ayub Ghauri, Khuda Bakshsk and Abdul Aziz alias Jija is dismissed.