' Due to the previous dispute of criminal nature with respect to a murder case an occurence took place on 1-9-1998 at about 10-00 p.m. Within the area of Police Station, Phullarwan, District Sargodha wherein one Baqri lost his life and murderous assault was made on Muhammad Afzal P.W. According to the recitals of the Muhammad Aslam complainant along with his father Baqri (deceased of this case), his mother Mst. Fatima and his cousin Muhammad Afzal was present at about 10-00 p.m. While they were sitting on the cots. It was moon-lit night and the lantern was also on. Jahangir, Muhammad Amir, 2afar Iqbal and Iftikhar accused each armed with rifle as well as Nazar Muhammad, Zulfiqar and Muhammad Aslam accused each armed with .12 bore gun alongwith five other unknown persons each armed with lethal weapons arrived there. They raised the Lalkara that they would get the revenge of the murder of Tanvir Iqbal. Jahangir petitioner accused fired with the rifle which hit Baqri who fell down and thereafter, Zulfiqar fired at Baqri.
Jahangir fired' for the second time at Baqri and he expired. Muhammad Amin fired which hit Muhammad Afzal on his left thigh. Thereafter, the accused persons made good their escape.
2. About the occurrence F. I. R. No, 166, dated 2-9-1998 was registered under sections 302, 324, 148, 149 and 109, Pakistan Penal Code at Police Station Phullarwan, District Sargodha. The law was set in motion. In his supplementary statement Muhammad Aslam complainant named Khalid Mahmood and Hamid Hussain as the accused persons who had joined their co-accused in the occurrence.
Muhammad Afzal and Mst. Fatima P.Ws. Also named both Khalid Mahmood and Hamid Hussain as the accused persons when the said P.Ws. Were examined under section 161, of the Code of Criminal Procedure. The autopsy was conducted. During the investigation before Mr. Muhammad Arif Hanif Additional Superintendent of Police, Bhalwal the matter was settled at the special oath and on the oath of the complainant party both Khalid Mahmood and Hamid Hussain were declared as the accused on 17-10-1998 who were earlier arrested on 14-9-1998. The bail application of both Khalid Mahmood and Hamid Hussain has been dismissed by the learned Additional Sessions Judge, Bhalwal who have filed this petition for their admission to bail.
3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The admitted facts are that Muhammad Aslam complainant did not get recorded the names of Khalid Mahmood and Hamid Hussain petitioners as the accused in the F.I.R.. It was in his supplementary statement that the complainant named these petitioners as the accused. The remaining P.Ws. Namely Muhammad Afzal and Mst. Fatima named both Khalid Mahmood and Hamid Hussain as the accused of the case. However. The aforesaid P.Ws. Have not attributed any practical role to both the aforesaid petitioners-accused. Learned counsel for the petitioners has argued that it was on the basis of special oath that the petitioner were declared as the accused during the investigation by the Investigating Officer and that in the Code of Criminal Procedure there I no provision to declare any person as the accused on the basis of special oath.
He added that no practical role has been attributed to both these petitioners-accused. On the contrary learned counsel for the State laid the emphasis that on 2-9-1998 which is the date of the registration of the case Muhammad Aslam complainant in his supplementary statement and Muhammad Afzal injured P.W. And Mst. Fatima P.W. Named both Khalid Mahmood and Hamid Hussain as the accused of the case and for that matter they are not entitled to be admitted to bail.
I would express that it is a case for the admission of both these petitioners-accused 4Q bail. In this regard I have to express that in the F.I.R.. Both these petitioners were not initially got entered by the complainant. Further, they have not injured the deceased as well as Muhammad Afzal P.W. Even the role of ineffective firing at the time of occurrence is not attributed to them. The investigation based on the special oath cannot be given the weight for the purpose of the prima facie involvement of both these petitioners-accused as in the Code of Criminal Procedure there is no provision in this regard. Further, the criminal cases cannot be got settled on special oath in view of the provisions of section 163 of the Qanune-Shahadat Order, 1984. The administration of justice is based on the investigation of a case and if during the trial the matter cannot be settled at special oath as expressed above, I hold the view that during the investigation as well the aforesaid procedure cannot be adopted and if it is adopted the same has no legal force. I would refer to Mst.
Bashiran Bibi v. Nisar Ahmad and others (PLD 1990 Supreme Court 83) as well as Hussain Ahmad alias Madni v. The State (1996 PCr.LJ 130 Lahore) for expressing the aforesaid view. In the circumstances of the matter I hold that the involvement of both the petitioners-accused is a question of further inquiry.
4. I, therefore, accept this application and admit Khalid Mahmood and Hamid Hussain petitioner- accused to bail in the sum of Rs,2,00,000 (Rupees two lac only) each with one surety each in the like amount to the satisfaction of the learned Additional Sessions Judge, Bhalwal, District Sargodha or in his absence to the satisfaction of the learned Sessions Judge, Sargodha with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel the bail of the absentee accused person(s).