This is an application for bail before arrest in case F.I.R. No.233 of 2000. According to the allegation levelled by Muhammad Amin complainant, the petitioner alongwith 10 others while armed with fire-arm fired indiscriminatory which resulted into the death of Abid Hussain and Muhammad Khalid there and then, at a distance of 4 and 5 acres. One Ishaque Maseeh was also found to be dead.
2. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case, that Muhammad Amin, Naeem, Allah Ditta and Zulfiqar had made their statements before the learned Additional Sessions Judge exonerating the petitioner. He further submits that other eye-witnesses namely A.I Hassan, Imran and Muhammad Irfan have also sworn affidavits exonerating the present petitioner which have been placed on the record and said witnesses are also present outside the Court. He further submits that petitioner has been falsely implicated in this case because earlier his brother was murdered. He has relied upon 1979 SCMR 137; 1997 PCr.LJ 916; PLD 1996 Lahore 192 and PLD 1997 SC 347.
3. On the other hand learned State counsel submits that the petitioner is named in, the -F.I.R. Imtiaz Bhalli, S.H.O. Police Station Narang Mandi, states that petitioner is giving shelter to the P.Os. That 8 of the accused in this case are still, at large. He further submits that according to 'zimni' No. 19 Ishaque Maseeh was murdered by the present petitioner party in order to create across-version and the said zinmi was verified by the D.S.P. Himself. He further submits that 150 empty cartridges were recovered from the snot.
4. I have heard the learned counsel for the parties. One'should keep in mind that considerations for bail before arrest and after arrest are totally different. Eight co-accused are still at large, some of them are P.O and are involved in 5 to 8 cases. 150 empty cartridges have been recovered from the spot. The affidavits of three above named persons namely A.I Hassan, Imran and Muhammad Irfan were not produced before the learned Additional Sessions Judge, even the learned Additional Sessions Judge vide his order, dated 3-10-2000 has made the following observation:-- "Similarly, in cross-version case Mukhtar Maseeh son of the complainant has not appeared in Court. Hadayat Masih P.W. Though made the statement before the Court but with half-heartedly.
He verbally deposed that Ishaque. Masih was murdered without justification ( Na-Huq).
It has been vehemently argued before me that the petitioner is an Advocate. I may note here that according to the Article 25 of the Constitution all citizens are equal before law and are entitled to equal protection of law, so no special treatment can be extended to the petitioner on this ground.
The petitioner has misused the concession of pre-arrest bail. He has won over some of the witnesses during the pendency of his application for bail before arrest before the learned Additional Sessions Judge and some of them have been won over by him before filing application for interim bail before arrest before this Court. Reliance in this regard is also placed on PLD 1997 SC 347 titled as Naseer Ahemd v. The State. I would like to mention here the following paragraph of the said judgment:-- At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail application of accused person with the intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court.
It is the mind of the Court which is to be satisfied where about turn of some of eye-witnesses in manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits. "