Sh. Muhammad Aslam complainant got recorded F.I.R. No,654 on 10-10-1999 at 6-30 a.m. Under section 302/34, P.P.C. At Police Station Naushera Virkan, District Gujranwala about the unwitnessed murder of his brother Mukhtar Ahmad aged 22 years in a room without door on the first floor of the Dera with fire-arm where the deceased was sleeping. Sh. Muhammad Aslam, Sh. Muhammad Saeed and Sh. Muhammad Saleem are said to have visited the place of occurrence first of all and thereafter, the matter was reported to the police.
2. The supplementary statement of Sh. Muhammad Aslam complainant was recorded on the same date i,e, 10-10-1999 wherein he stated that Muhammad Ishaque son of Abdul Latif informed him that two days before he heard Ehsan Ullah accused and Manzoor Hussain alias Joori accused on Bubar Road Naushera Virkan for murdering him or cutting his (complainant's) ears as he had insulted Muhammad Irfan, real brother of Manzoor Hussain alias Joori. Abdul Rehman P.W. And Muhammad Azeem P.W. Examined by the police deposed on 10-10-1999 that they had heard Babar petitioner-accused, Mian Manzoor Hussain alias Joori, Saeed Akram and Ehsan Ullah co-accused to teach Muhammad Aslam complainant the lesson by cutting his ears or murdering him as he had insulted them in a theft case. On 10-10-1999 Muhammad Ishaq and Muhammad Nazir P.Ws.
Stated before the police that they had seen Babar petitioner-accused, Manzoor Hussain alias Joori coming out of the Dera wherein occurrence had taken place. On 16-10-1999 Sh. Muhammad Sadiq and Aftab Ibrahim P.Ws. Were examined by the police to the effect that on 15-10-1999 at 4-00 p.m.
While they were present together at the Dera of Sh. Muhammad Sadiq P.W.; Manzoor Hussain alias Joori, Saeed Akram, Ehsan Ullah and Babar petitioner-accused contacted them and turn by turn made the confession about the murder of Sh. Mukhtar Ahmad who begged pardon.
3. Babar petitioner was arrested on 23-10-1999 who moved the learned Court of Sessions for his admission to bail which was dismissed by Raja Abdul Qayyum, Additional Sessions Judge, Gujranwala on 24-2-2000 and he has filed this petition to try his luck to be admitted to bail.
4. I have heard the learned counsel for the parties as well as the learned State Counsel and gone through the record before me. The contentions of the learned counsel for Baber petitioner-accused are that the F.I.R. Is with respect to an unwitnessed occurrence, that the petitioner is said to have been seen after the occurrence, that there is the allegation of hatching up of a conspiracy against Baber petitioner-accused alongwith his co-accused which is on the basis of the supplementary statement of the complainant as well as the attribution of extra-judicial confession and that with the circumstantial evidence collected by the prosecution Baber petitioner is not directed connected w at. The occurrence who admittedly did not participate in the occurrence. On the contrary learned State Counsel and the learned counsel for the complainant have laid the emphasis that the prosecution has collected the evidence of motive, whispering about the hatching up of the conspiracy, presence of Baber petitioner after the occurrence on the Dera and the extrajudicial confession and for that matter Baber petitioner is prima facie connected with the present occurrence who is not entitled to be admitted to bail. I would express that for the reasons to be mentioned infra the involvement of Baber petitioner-accused can safely be termed to be that of further inquiry. In the F.I.R: there is no mention of the motive. The occurrence is unwitnessed.
The supplementary statement of Sh. Muhammad Aslam complainant cannot be equated with the First Information Report recorded under section 154 of the Code of Criminal Procedure which shall not prove to be corroborative piece of evidence. Abdul Rehman and Muhammad Azeem P.Ws.
Claimed to have heard whispering Baber petitioner in the company of the co-accused about the hatching up of a conspiracy, but it is to be expressed conspicuously that the said conspiracy was not with respect. To the murder of Mukhtar Ahmad deceased. They are said to have made the conspiracy to cut the ears of Sh. Muhammad Aslam complainant and to murder him and not to murder Mukhtar Ahmad deceased. Without prejudice I am tempted to express that according to section 301, Pakistan Penal Code if instead of the original target some other person is murdered the assailant is also liable for the murder of the killed person. This aspect is missing in this occurrence.
The ingredient of extra-judicial confession has to be viewed with caution at this stage especially when Baber petitioner admittedly has not practically participated in the occurrence. The presence of Baber petitioner-accused after the occurrence near the Dera is nothing enough to disentitle him to enjoy the concession of bail as he was not shown to be armed with any weapon at that time and even no recovery of any weapon has been attributed to him.
5. At this stage without being disrespectful to Raja Abdul Qayyum, 'Additional Sessions Judge, Gujranwala I would like to dissect the following aspects of the bail application connected with the relevant to this matter and rather for the disposal of the bail applications:--
(i) Many a times it is brought to the notice of this Court during the arguments of the bail applications or other matters that the rulings of the superior Courts produced during the arguments are not attended to, referred and relied upon by the learned subordinate Courts. I hold the view and firmly express that due regard must be given to the dictum enunciated by the superior Courts in different matters. It is simply astonishing that in .The instant matter Saeed Akram and Ehsan Ullah co-accused were admitted to bail vide order, dated 13-12-1999 and it seems that the same was not gone through by the learned Additional Sessions Judge. The reasoning and findings of the aforesaid order, dated 13-12-1999 are also attracted to the bail plea of Baber petitioner-accused. Learned counsel for Baber petitioner-accused expressed that he argued his bail application before the learned Additional Sessiohs Judge and relied upon the order, dated 13- 12-1999 but no weight was given to the same. I must give vent to my feelings that to eclipse the order, dated 13-12-1999 while passing the order, dated 24-2-2000 whereby the bail application of Baber petitioner-accused was dismissed is simply unfair, unjust and devoid of judicial propriety. It has been held in Muhammad Yousaf v. The State 1983 SCMR 102(1) that where the case of the petitioner-accused is similar to that of his co-accused already released, on bail he is also entitled to be admitted to bail. It is termed as the Rule of Consistency. The case of Baber petitioner- accused is consistent with the aforesaid accused released on bail vide order, dated 13-12-1999. As such Baber petitioner is also entitled to sail in the same boat alongwith his aforesaid co-accused for the purpose of his admission to bail through the attraction of Rule of Consistency.
(ii) While dismissing the bail application of Baber petitioner-accused learned Additional Sessions Judge has adopted the reasoning that after investigation of the case the petitioner has been found guilty and challaned and, thus, is not entitled to be admitted to bail. I hold that this reasoning is devoid of judicial blessing. During the recent past and these days the trend is growing and is being projected by the prosecution, the learned subordinate Courts and the complainants of the criminal cases that due to the fact that the accused has been found guilty during the investigation who has been challaned in a non-bailable offence he is not entitled to be admitted to bail. It is proper to express that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. Even after an accused is challaned he has the locus standi to move the bail application which is competent and can be accepted or rejected within the limits of law. If the aforesaid reasoning adopted by the learned Additional Sessions Judge is to be approved and followed it can safely be expressed that there is no need of retention of section 497 of the Code of Criminal Procedure as the same would simply become redundant. Unfortunately the trend of the expression of the aforesaid type of reasoning for the dismissal of the bail applications is increasing alarmingly and it has laid the foundation of injustice in many of the subordinate Courts. This is not the intention of law keeping in view the shape of scale of justice and the provisions of Statute. As such this reasoning need not be given the weight which is discarded.
6. For what has been said above, I accept this application and admit Baber petitioner-accused to bail in the sum of Rs,3,00,000 (Rupees three lac only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Gujranwala with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail and, proceed further-in accordance with law.