' The petitioners are involved in a case F.I.R. No, 199 dated 2-7-1998 for the offences under section 302/109/34/148/149, P.P.C. Registered at Police Station Cantt., Sargodha on the statement of complainant Riasat Ali, alleging that he is an ex-army man. On the evening of 2-7-1998 Karamat Ali and Salim had come to their real brother Niamat Ali in connection with some domestic problem. At about 6-30 p.m Karamat Ali and Tariq Salim who are brothers went out for consultation in the street. Meanwhile, there was noise outside. The complainant alongwith his brother Karamat Ali came out and saw that Shabbir Ahmad armed with .12 bore gun, Ansar Mahmood (nephew of complainant) armed with .30 bore pistol came raising Lalkara and Ansar Mahmood issued 4 fires of his pistol on Niamat Ali which hit on his left cheek, right and left eye and forehead. Shabbir Ahmad issued his .12 bore gun fires which hit Niamat Ali on his left side of Wakhi. Salim Tariq brother of the complainant ran to save his life and when reached near the land of Rafiq Saroch, Shabbir Ahmad issued fire of .12 bore gun which hit Salim on his head and left ear. Ansar Mahmood also issued 3 or 4 fires by his .30 bore pistol which hit Salim Tariq on his back and right Patt. They fell on the ground. Ihsanullah, who was present on the Flour Mill of Ch. Faiz Ahmad saw the incident with his own eyes besides the complainant. They could not go forward fearing death and the accused Ansar Mahmood and Shabbir Ahmad ran from the spot. When the complainant saw the injured Niamat Ali and Salim Tariq they both had succumbed to the injuries. The motive as alleged in the F.I.R. Was that about 2 years prior to the incident the sister of accused Shabbir Ahmad who was the wife of Niamat Ali (brother of the complainant) was murdered and case was registered against Tariq Salim. She was mother of accused Ansar Mahmood. Tariq Salim was challaned to Court and was acquitted. Shabbir Ahmad and Ansar Mahmood had grudge and they murdered Niamat Ali and Tariq Salim (brother of the complainant) and that this murder has been committed in furtherance of their common intention by Ansar Mahmood, Shabbir Ahmad, Nazir Ahmad, Muhammad Rafiq, Kaloo and Muhammad Ashraf.
2. Earlier the petitioners Muhammad Rafiq and Kaloo and co-accused Nazir Ahmad had approached this Court for grant of pre-arrest bail and they were directed to approach the Court of Session from where after filing the application, the same was withdrawn on 24-8-1998. Thereafter the petitioners and two others made two separate applications for grant of bail after arrest but the same was declined by the learned Sessions Judge, Sargodha on 28-10-1998. Co-accused Muhammad Ashraf and Nazir Ahmad applied for bail before this Court through Criminal Miscellaneous No,887-B of 1999 which was allowed on 5-3-1999. The complainant instead of assailing the aforesaid order before the Hon'ble Supreme Court of Pakistan, filed an application for cancellation of bail of the aforesaid two accused through Criminal Miscellaneous No, 1769-BC-99.
The said application and the present application are being disposed of jointly at the request of all the parties.
3. Muhammad Rafiq, Bashir and Kaloo petitioners again moved for bail after arrest on 11-3-1999 which was dismissed by the learned Additional Sessions Judge, Sargodha on 18-6-1999 with the observations:-- "This is a double murder case wherein two real brothers have been brutally killed. The petitioners are nominated in the F.I.R. With specific roles of abetment. The alleged offence against the petitioners falls within the prohibitory clause of section 497, Cr.P.C. Earlier, the petitioners have been refused bail after arrest by the learned Sessions Judge, Sargodha, vide order dated 28-10-1998 after having considered merits of the case. Ansar Mahmood and Shabbir Ahmad co-accused are still at large."
4. The bail is now pressed on the grounds that the petitioners have been falsely implicated and they have nothing to do with the commission of the offence and that bald allegations have been levelled against them in the F.I.R. And name of the witnesses are not even mentioned therein in whose presence the present petitioners allegedly abetted or conspired and that it is a question of consideration as to whether the petitioners were so fool enough to declare their intention of killing the deceased persons in presence of persons related to the complainant party and that. There is no cogent evidence of worth consideration to connect the petitioners with the commission of offence and the evidence with regard to the allegations of conspiracy/abetment does not furnish reasonable ground for believing that the petitioners are guilty for abetment of offence of murder and that there can be no two opinions that the case of a conspirator or abetter not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot and that it is very easy to set up accusation of abetment or instigation or conspiracy and that when the parties are inimically dispressed, possibility of false implication of accused is very much there and that mere abscondence of the co-accused does not disentitle the petitioners to be admitted to bail as ultimate conviction and incarceration, of a guilty person can repair the wrong caused by the mistaken relief of bail during trial but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair and the two co-accused Muhammad Ashraf and Nazir Ahmad have been grated bail by this Court on 5-3-1999 and the rule of consistency was attracted in this case and that there is no apprehension of the petitioners' abscondence or tampering with the prosecution evidence and even during the period when they were on interim per-arrest bail firstly by this Court and later on by the Court of Session, neither they nor their co-accused ever tried to tamper with the prosecution evidence or gave any threat to them and that they are ready to furnish bail bonds to the satisfaction of the Court.
5. The bail is opposed as also the cancellation of bail of the co-accused namely Muhammad Ashraf and Nazir Ahmad is sought on the grounds that the main accused persons in the instant case are closely related to said Muhammad Ashraf and Nazir Ahmad who have not so far been arrested and are proclaimed offenders and the release of them on bail has further aggravated the situation and the complainant and the P.Ws. Apprehended danger to their lives at the hands of the accused persons and that it is a brutal murder in which Muhammad Ashraf and Nazir Ahmad did not surrender immediately after the occurrence and remained absconders for a considerable time due to which they were not entitled to the concession of bail and that sufficient material is availabel with the prosecution to connect them with the commission of double murder and that the complainant is a poor man and the accused are extending pressure to withdraw from the case and they are misusing the concession of bail and they have made the life of the complainant and his family members miserable and threat of dire consequences are being extended to the complainant and the P.Ws. The complainant has attached the affidavits of Muhammad Ashraf and Shahzad Naeem to this effect.
6. The learned counsel for the State has opposed the bail application for the reasons given by the learned Additional Sessions Judge while declining the bail.
7. I have given due consideration to the valuable arguments of both sides The tentative assessm ent of the record shows that the names of the witnesses are not mentioned in the F.I.R. In whose presence the conspiracy was hatched and that the petitioners are closely related to accused Ansar and Shabbir Ahmad the principal accused to whom the firing of pistol and gun shots are attributed respectively. The role attributed to the co-accused Muhammad Ashraf and Nazir Ahmed was also of conspiracy who were admitted to bail by this Court on 5-3-1999 (Criminal Miscellaneous 887-B-99). It is also admitted position on the record that these petitioners were not present on the spot. The enmity and murder cases between the parties is also a fact admitted in the F.I.R.. All these facts taken together bring this case within the ambit of further probe and the rule of consistency also demands that the present petitioners be also admitted to bail taking guidance from the judgment in the case of Syed Amanullah Shah v. The State and another PLD 1996 SC 241 where the petitioner was present at the time of occurrence and had caused injuries to the deceased and the allegation was of a conspirator or a better and in that case the Hon'ble Supreme Court while releasing the petitioner on bail observed as under:- "...There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused Instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/ instigation/ conspiracy' Iema, needless to say when parties are inimically dispressed, the possibility of false implication of opponent is very much there. So, we are of the view that where post arrest bail is granted in such cases, then it should not be cancelled as a matter of course or in routine. Once bail is grant by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.0 are not punitive. There is no legal compulsion for cancelling bail granted in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case.
' Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial. Freedom of an individual is a precious right. Person liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused."
8. The argument of the learned counsel for the complainant that the accused who were granted bail were threatening the P.Ws. Shahzad Naeem and Muhammad Ashraf is of no help in the matter of cancellation of the bail of Muhammad Ashraf and Nazir Ahmad or to refuse bail to the petitioners Muhammad Rafiq. Bashir and Kaloo for the reason that they are not mentioned anywhere in the F.I.R. As witness of the incident or witnesses of conspiracy, the allegations are of vague and casual nature and there was no report lodged with the police with respect to the alleged threats, hurled at the complainant or the deponents.
9. In the case of Mehar Din v. Nazar Hussain and 3 others 1979 SCM R 351, where the contention for leave to appeal was that accused could not be apprehended unless bail of the co-accused was cancelled and in this connection it was also alleged that he was being harboured by the co- accused and the only way in which he could be apprehended was by cancelling the bail of the co- accused, the Hon'ble Supreme Court observed as under:- "We agree with the learned Judge that the co-accused cannot be penalised on the assumption that the absconder can only be arrested if they are first arrested. No details of how they are harbouring him and preventing his arrest have been given and this bald allegation cannot be accepted at face value unless it is supported by cogent material. Indeed this should be done by bringing it to the attention of the police in the first instance."
10. For the above reasons, no case is made out for the cancellation of bail of the accused Muhammad Ashraf and Nazir Ahmad. As such Criminal Miscellaneous No,1769-B of 1999 titled as "Riasat Ali v. Muhammad Ashraf etc." is dismissed and the petition for bail Criminal Miscellaneous No,4600-B of 1999 titled as "Muhammad Rafiq etc. v. The State" moved by Muhammad Rafiq, Bashir and Kaloo merits to be allowed which is allowed and they are granted bail subject to their furnishing bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the trial Court.