Heard.
' Before I take up the bail petitions, I may point out that the record of W.P. No, 18829 of 1997 has been perused. It is a writ petition in which the scope of the inquiry to be conducted by a Magistrate has been challenged and as such is a distinct matter having no connection with the present bail Petitions, which can be taken up independently. The file of the aforesaid writ petition be sent back to the office.
2. This order will dispose of the connected bail petition (Crl. Misc. No,2078-B/98) as both of them arise out of the same impugned order and the same F.I.R.
3. A case under section 302/148/149, P.P.C. Read with section 316/109, .P.C. Was registered against the petitioners and others at Police Station, Kirana District Sargodha vide F.I.R. No, 148 dated 26-5- 1997 lodged by Amir complainant. It was stated in the F.I.R. That police party consisting of Muhammad Rafaqat A.S.I., C.I.A., Bashir Constable, Amanullah Head Constable, Muhammad Afzal Constable and Muhammad Riaz son of Bashir Head Constable came at his residence in the presence of Muhammad Khan son of Manak and inquired about the deceased Muhammad Hayat.
The deceased was not at the house at that time whereupon the complainant promised to produce him before the police. In pursuance to the promise the complainant took the deceased Muhammad Hayat to the police station on 23-5-1997 at 7.00 p.m. Alongwith Muhammad Khan son of Manak and Dost Muhammad son of Fateh Muhammad (P.Ws.), The deceased was taken to Bangla Kandiwal in a vehicle from the police station. The complainant and the aforementioned witnesses also followed them. On reaching there, they saw Muhammad Aslam, Ashraf Muhammad Yar son of Lal. Muhammad Yar son of Salehon, Mumtaz son of Bashir, Dari, Muhammad Khan son of Raja and Sada son of Ahmad, residents of Chak No,54/SB present at that place. All those persons had old enmity with the complainant and his deceased brother Muhammad Hayat. All eight of them challenged that they would not leave Muhammad Hayat alive. After that challenge Bashir constable and Amanullah Head Constable caught hold the deceased from his legs and fell him on the ground. Muhammad Afzal Constable caught hold the deceased by his arms, who was striped naked. Thereupon, Rafaqat A.S.I. And Muhammad Riaz, Head Constable son of Bashir started beating the deceased with 'Dandas', 'Chittar' and kicks. The present petitioners named above stood nearby and kept on raising Lalkaras. After the aforesaid beating the condition of the deceased deteriorated whereupon Rafaqat A.S.I. Alongwith other police employees removed the deceased to the office of C.I.A. (HQ) at Sargodha. The complainant and the P.Ws. Also followed them so that they could bring the occurrence to thenotice of higher officers. Muhammad Hayat deceased was however, put in the judicial lock-up in semi conscious condition. Rafaqat A.S.I. Gave 2/3 injections to Muhammd Hayat deceased and also put some material in his mouth, whereupon, the latter expired.
4. It was alleged by the complainant that the deceased was done to death due to police torture mentioned above with the motive that Muhammad Hayat deceased had exchange of hot words with Muhammad Riaz Head Constable, ' whereupon the deceased had given two slaps to Muhammad Riaz aforesaid. The present petitioners had also allegedly enmity with the deceased due to some murder between the families and had therefore, joined hands in the murder of the deceased.
5. The learned counsel for the petitioners has submitted that admittedly all the petitioners were empty handed and had allegedly raised Lalkaras; that they were repeatedly declared innocent during the investigation on the ground that possibility of their false invc!Vement could not be ruled out due to inimica' background between the two families; that the petitioners were placed in colu No,2 after being held innocent by the different Investigating Agencies. Th petitioners were arrested on 13-6-1997 and they were allegedly behind the bars for the last about a year; that the main culprits in this case were allegedly the police employees, who had given severe beating and tortured the deceased to death; that only allegation against the petitioners is that they allegedly stood nearby to exhort them. Hence it was submitted that it was a case of further enquiry.
6. The learned counsel for the State did not oppose the bail petitions as according to him challan against the petitioners was submitted under section 316, P.P.C. Instead of section 302, P.P.C.
Likewise, it was contended that petitioners were declared innocent during different investigations and as such, they had a case of further enquiry.
7. The learned counsel for the complainant, however, vehemently opposed the bail petitions on the ground that presence of the petitioners at the spot was not only as spectators but they had exhorted the police employees to kill the deceased as they had background to join hands with the cruel police party. The deceased was allegedly involved in a false case in pursuance of which the police had gone to his house, which resulted into the present occurrence. In that case, the petitioners namely Mumtaz and Ashraf were the prosecution witnesses. Likewise, admittedly there was enmity between the two families and it was an occasion for the petitioners to take revenge by joining police in killing the deceased. It was, therefore, urged that there were circumstances, which suggested that the petitioners had motive to join hands with the police, which killed the deceased instead of protecting his life being its duty as held in Sarwar Ali v. The State reported as 1995 M LD 361 (Karachi).
8. Lastly, it was contended that investigation in this case was never fair because the main culprits were the police employees and as such, all the Investigating Officers being from the police had strenuously tried to help them out. As such, it was alleged that investigation conducted by the police should not be taken into account to release the petitioners on bail at this stage.
9. I have considered the foregoing submissions made at the Bar. It is clear even from the F.I.R. That all the petitioners were empty handed and did not take part in causing any injury to the deceased except that they raised Lalkaras exhorting the police party to kill the deceased. There is also an admitted background of enmity, the effect of which is that it cuts both ways. It may be a case of false involvement and otherwise as well. It can only be thoroughly gone into at the time of trial. At present all the petitioners have been found innocent during investigations conducted by senior police officers. The offence has also been changed from section 302, P.P.C. To section 316, P.P.C. The petitioners are behind the bars for the last about one year. The main culprits have yet to be brought to book.
10. It is true that the police investigation is not a binding factor on any Court but the fact remains that it is the first agency, which comes into contact with the aggrieved party and also with the accused while conducting investigation. Its opinion is, therefore, relevant if otherwise it does not smack any mala fide. In the instant case, all the petitioners have been found to be innocent in repeated investigations with the conclusion that their false involvement could not be ruled out on account of enmity between the two families. This fact cannot be readily answered except upon a regular trial. As such, the petitioners have a case of further enquiry particularly when they have not been assigned any specific role of causing any injury or otherwise, except that they exhorted the police party i,e,, the main culprits to kill the deceased.
11. In view of above, both the petitions are accepted and all the four petitioners are admitted to bail in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of learned trial Court.