' Jawad and Kashif respondents and their father Javaid Akhtar were accused of having murdered one Maqsood Javaid Butt who was the husband of a daughter of Javaid Akhtar accused and, thus, a sister of Jawad and Kashif respondents. The occurrence had taken place on 8-11-1999 at about 1- 30 p.m. Immediately outside Madrasa-tul-Banaat School where the deceased had gone to meet his children which children had been taken away by the wife of the deceased who was living in her parental home after matrimonial disputes with her deceased husband. The F.I.R. Was recorded on 10-11-1999 at 12-10 a.m. On the statement of the deceased himself when he had allegedly regained consciousness and who had then died on 13-11-1999. He had alleged, as has been mentioned above, that he had gone to the said school to meet his children at the time of the closing of the said school where his father-in-law, namely, Javaid Akhtar and his brothers-in-law, namely, Jawad and Kashif were present; that each one of these three accused persons was armed" with automatic pistols and on seeing him all these three accused persons started indiscriminate firing with their respective weapons as a result of which he had received injuries. The deceased had added that the occurrence had been witnessed by Shahid Gulzar and one Zamin Ali. The deceased had been rushed to the hospital by one Shohnaam.
2. The investigation had been originally conducted by the S.-I./S.H.O. Of Police Station Mozang and before he could finalise the said investigation and reach some conclusion, the investigation got entrusted to the D.S.P., Anarkali and he had finalised the investigation. The said matter was later on entrusted to the S.P. Saddar of Lahore for further investigation.
3. Bail had been allowed to the two respondents essentially on the ground that both these Investigating Officers i.e. The D.S.P. Of Old Anarkali and the S.P. Of Saddar, Lahore had found that Jawad and Kashif respondents were not present at the time of occurrence and that they had not participated the same and thus were innocent.
4. The learned counsel for the petitioner addressed lengthy argument canvassing cancellation of the bail allowed to respondents Nos.l and 2 primarily on the ground that the two respondents stood specifically named in the F.I.R. Which had become the dying declaration; that according to this dying declaration both of them had actively participated in the occurrence in question and had fired shots injuring the deceased; that the two eye-witnesses named in the said dying declaration namely, Shahid Gulzar and Zamin Ali had also supported the complainant's version nominating the two respondents as the assailants; that the declaration of innocence of the two respondents made by the two Investigating Officers was not well-founded in law; that in any case the opinion of the Investigating Officer had no binding effect vis-a-vis the Courts of law; that the plea of alibi raised by the two respondents was a fabrication and in the circumstances the bail allowed to the two accused respondents deserved to be, recalled.
5. The learned counsel for the accused-respondents defended the bail allowed to them on the ground that despite the allegation of indiscriminate firing by the three alleged assailants with their automatic pistols not a single crime-empty had been found at the spot which was sufficient to falsify the allegation of shots having been fired by three automatic pistols; that the recording of the F.I.R. Had been inordinately delayed and the reason offered for this delay i.e. The unconsciousness of the victim was not reasonable explanation of the delay in lodging of the F.I.R. Because the same did not have to be recorded on the statement only of the victim of the occurrence and could have been recorded on the statement of any of the eye-witnesses; that according to the information divulged by the deceased Yaqoob, S.-I./S.H.O. Of Police Station Old Anarkali who was the first to reach the place of occurrence when the deceased was fully conscious it had been told to him by the deceased that he had been assaulted by his father-in-law; that similar was the statement of Shehanaam who had admittedly taken the injured to the hospital and who had also been told by the deceased that his father-in-law was the one who had caused injuries to him; that even according to the improved version of this Shehnaam what had been allegedly told to him by the deceased was not that it was his father-in-law who had injured him but that injuries had been caused to him by his "in-laws" and the two respondents had not been specifically named even in this improved statement of the said Shehnaam; that the F.I.R. Had been recorded after due deliberations and considerations; that the two eye-witnesses never claimed that they had met the deceased outside the school and, thus, the claim of the deceased that these two persons had witnessed the occurrence was open to exception because a large number of persons were present at the time of the closing of the school to fetch their children; that the two respondents are the only sons of Javaid Akhtar accused and that their names had been included only to involve all the male members of the family; that both the Investigating Officers were senior Officers of the Department and their unanimous opinion was that the two respondents were innocent and finally that in view of the attending facts and circumstances it could not be said that the opinion of the two Investigating Officers was whimsical or not based on cogent reasons.
6. The learned counsel fdr the complainant/petitioner, the learned counsel for the accused respondents' and the learned State Counsel have been heard at length and the record has also been examined with their assistance.
7. I do not wish to make any comments on the submissions made by the two sides lest the same may prejudice the proceedings which are presently pending or which might follow. Suffice, however, to say that having heard the parties and having gone through the record, I find that the discretion exercised by the learned Additional Sessions Judge in releasing the two respondents on bail could not be said to be arbitrary or whimsical or perverse. This petition is, therefore dismissed.