Through this order we intend to dispose of three post-arrest bail applications i.e. Criminal Miscellaneous No.2930-B of 2002 filed by Qari Ata Ullah, Criminal Miscellaneous No.2870-B of 2002 filed by Allah Ditta and Criminal Miscellaneous No.2890-B of 2002 filed by Abdul Haq as all these petitioners are accused in case F.I.R. No. 158 of 2001 registered on 28-7-2001 under sections 302/324/34, P.P.C. Read with sections 7-A and 21-J of the Anti-Terrorism Act, 1997 at Police Station City Kehror Pucca, District Lodhran.
2. The brief allegations in the F.I.R. Have been narrated lodged at the instance of Muhammad Farooq Khan are that Muhammad Siddique Khan Kanjoo his cousin alongwith Major Muhammad Aslam were contesting the election for Nazim and Naib Nazim of District Lodhran. On 28-7-2001 at 6-00 p.m. Akbar Shah Gillani candidate for Naib Nazim alongwith Dr. Muhammad Akbar Khan Kanjoo, Sh. Muhammad Riaz, Malik Muhammad Qasim Joiya and driver Ali Sher alias Bashir Khan alongwith Muhammad Siddiq Khan Kanjoo and Major Muhammad Aslam Joyia in connection with their election campaign came at Ghausia Chowk at Kehror Pucca. Muhammad Siddiq Khan, Major Muhammad Alam Joyia, Akbar Shah Gillani, Malik Muhammad Qasim Joyia came out of the vehicle and went to the shop of Muhammad Jamil Councilor for the purpose of requesting for casting votes in their favour, while Dr. Muhammad Akbar Khan Kanjoo remained sitting in the Jeep. When Muhammad Siddiq Khan Kanjoo and others returned from the shop of Jamil three unknown persons (the description of their features have been given in the F.I.R.) fired and murdered Muhammad Siddiq Khan Kanjoo and Major Muhammad Aslam while injured Sh. Riaz and Dr. Muhammad Akbar Khan Kanjoo. Four persons were sitting in the car bearing Registration No. MNX- 4375 and they succeeded in running away from the spot. The occurrence according to the complainant took place at the instance of the opponents.
3. Learned counsel for the petitioners contends that the petitioners are innocent and have been falsely involved in this case as the police recorded the statements of Muhammad Fazal Khan, Ghulam Hussain and Khuda Bakhsh after eleven months of the occurrence on 20-6-2002 and according to their statements they had seen the accused Shakeel Anwar etc., who have been murdered in a police encounter and had actually participated in the occurrence in the company of the petitioners three days ago and on the day of occurrence while Allah Ditta had come to the Dera of Muhammad Siddique Khan Kanjoo and requested him for the issuance of chit in his favour but he told him to visit his Dera and giving of chit there. It is further contended that the statements of Fazal Khan, Ghulam Hussain and Khuda Bakhsh recorded at the belated stage, have got no evidentiary value and even if their statements are accepted to be true, these statements are no more of having last seen the petitioner in the company of the co-accused who have been murdered in the police encounter which itself is not sufficient to connect them with the commission of the crime and the implication of the said accused to have committed murder is also only based on presumptions without collecting any incriminating evidence in this regard. It is also contended that the case of the petitioner is of further inquiry and is covered by subsection (2) of section 497, Cr.P.C. As nothing was recovered from the petitioners, they are not named in the F.I.R., no role has been ascribed to them even after the recording of the statements of these persons and the prosecution so far has not collected sufficient evidence against them hence they are entitled to bail. It, is further contended that Ashiq Baloch who is alleged to have paid Rs.1,00,000 to the real culprits Shakeel Anwar etc. For the murder of Muhammad Siddique Khan Kanjoo etc. Has been granted bail by this Court and case of the petitioners is at par with the case of said co-accused Ashiq Baloch, thus they are also entitled to the same relief on the principle of consistency.
4. On the other hand learned counsel appearing on behalf of the complainant contends that nobody is named in the F.I.R. As accused but subsequently during investigation statements of these witnesses were recorded having seen the petitioners in the company of Shakeel Anwar etc. Who had committed murder while participating in the actual occurrence and in such-like cases, it can be considered a material piece of evidence. It is also contended that the fourth accused namely Kashif Imran was arrested by Kotwali Police of Police Station Jhang in case F.I.R. No.553 dated 7-12- 2001 and he nominated Abdul Haq as his associate in his statement who subsequently was arrested in case F.I.R. No.186 of 2001 registered under section 302, P.P.C. At Police Station Saddar Mailsi in which Zia-ul-Hassan Shah was murdered and in his statement he has mentioned that they used to live in the house of Abdul Haq, as such the connection of the petitioners with the co- accused who had actually participated and committed the occurrence has been established through the statements of these three witnesses coupled with the statement of co-accused Kashif Imran. It is further contended that the offences are punishable with death or transportation for life and the case is fully covered by subsection (1) of section 497, Cr.P.C. Hence the petitioners are not entitled to the grant of bail when the report under section 173, Cr.P.C. Has been submitted against them.
5. Mr. Muhammad Qasim Khan, learned Assistant Advocate-General has entered appearance and opposed these petitions on the ground that sufficient evidence is available against the petitioners and they are guilty of the offences hence are not entitled to the grant of bail as they are involved in the offence falling within the prohibitory clause of section 497, Cr.P.C.
6. We have heard learned counsel for the parties and also gone through the record with the assistance of the learned counsel for the parties. The petitioners have been involved in this case through the statements; of three witnesses namely Fazal Khan, Ghulam Hussain and Khuda Bakhsh recorded after eleven months of the occurrence who have only stated that the petitioners were seen in the company of Shakeel Anwar etc. Before the occurrence, who had participated in the actual occurrence. It will be relevant to point out that so far no incriminating evidence has been collected by the police to substantiate involvement of Shakeel Anwar etc. In this case, no identification parade of the said accused was ever held for the identification as the real culprits from the witnesses even after, they were murdered in a police encounter. To the extent of the petitioners except the evidence of last seen with the aforesaid accused, no other evidence is available with the prosecution that they had any motive to murder Muhammad Siddiq Khan Kanjoo etc. And had hatched a conspiracy or the occurrence took place at their instance or they facilitated the co-accused for the murder of the deceased. The evidence so far collected by the prosecution is not sufficient to prima facie connect the petitioners with the commission of the crime and case of the petitioners is of further inquiry covered by subsection (2) of section 497, Cr.P.C.
7. All the three applications are accepted and the petitioners namely Qari Ata Ullah, Allah Ditta and Abdul Haq are admitted to bail subject to their furnishing bail bonds in the sum of Rs.2,00,000 each with two sureties each in the like amount to the satisfaction of the learned trial Court. However, it is clarified that the observations made while granting bail are based on tentative assessment and will not prejudice the case of either party at the trial as is settled principle.