1987 PLP 2683 (MLD)

Muhammad Sadiq and others v. The State 1980 S C M R 203 ref. Malik Muhammad Din for Petitioners. A. R. Tayyab for Complainant. Malik Muhammad Aslam for the State. Mushtaq Ahmad and Sher Muhammad petitioners with 4 others are accused of having committed the murders of Mst. Sardaran and Sarfraz in the prosecution of their common object while being members of unlawful assembly on the night between 14/15th July, 1986. The petitioners were, declined bail by the lower court, hence this petition.

2. Muhammad Siddiq complainant, husband of the sister of Sarfraz deceased, reported at Police Station Abbasnagar district Bahawalpur, on 15-7-1986 at 9 a.m. that on the preceding night he alongwith Sarfraz were asleep in front of their house besides Muhammad Rafiq PtW. At about 2 a.m. (mid-night) he woke up on hearing the alarm raised by Muhammad Rafiq P.W and saw Ali Muhammad and Allah Yar armed with hatchets, Ahmad Yar with a gun Iqbal alias Billu with a stick and Mushtaq and Sher Muhammad, petitioners, empty handed taking away Sarfraz to their house and within their view they had first murdered him and then their relation-lady Mst. Sardaran.

3. The doctor who performed post-mortem examination on the dead bodies of the deceased found numerous injuries caused with sharp and blunt weapons. Their vaginal/ urethral swabs were prepared and sent to the Chemical Examiner for detection of semen from whom positive reports have been received.

4. It is contended on behalf of the learned counsel for the petitioners that both the deceased had been actually murdered Allah Yar and Ali Muhammad, co-accused of the petitioners with hatchets under fit of grave and sudden provocation as they were found in compromising position at night in their house. The petitioners were not present at that time but have been involved due to their relationship with the main accused. Controverting the arguments, learned counsel for the complainant urged that the case has since been fixed for delivering to the accused copies of the -statements of the P.Ws on 21-10-1986 and that since their trial is going to commence shortly, therefore in view of the dictum laid down in Muhammad Sadiq and others v. The State (1980 S C M R 203) and 1985 SCMR 1691 (Mat. Irshad Begum v. Muhammad Afzal) the petitioners are not entitled to the grant of concession of bail. On merits, it is submitted that the petitioners alongwith their co-accused had, in fact, prepared a plan to do away with the two deceased and in execution of that plan, they, had abducted Sarfraz deceased while he was asleep in front of his house and then done him to death alongwith their own lady Mst. Sardaran in order to give colour of grave and sudden provocation to the case.

5. I have carefully considered the facts and circumstances of the case in the light of case-law cited at the Far. In Muhammad Sadiq's case (supra) the Supreme Court declined bail to the accused because the date for trial of the case had already been fixed and likewise in Irshad Begum's case their Lordships refused to cancel the bail of the accused granted by the lower Court in almost similar circumstances. As for the case in hand, no date for trial of the petitioners has so far been fixed. Since the two deceased were found killed in the house of Allah Yar and Ali Muhammad and uretheral/vaginal swabs of both the deceased were found stained with semen,, therefore, prosecu tion story that Sarfraz deceased was lifted away by the petitioners within view of the witness is open to serious doubts. Furthermore, the petitioners were empty handed at the time of occurrence and had not caused; any injury to the deceased. In the circumstances. I feel inclined to, allow this petition, They are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs.25,000 each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Bahawalpur. Needless to say that the trial Court shall not be influenced by the observation made in this order and would decide the case by forming his independent view on the basis of the evidence produced before him at the trial. M.Y.H./M-393/L Bail granted.