1997 P Cr (PLP)

Hamesh Gul Khan for the State. Date of hearing: 2nd June, 1997. My this order will dispose of 'the two petitions i.e. (i) Criminal Miscellaneous No.289 of 1996 for grant of bail to the accused-petitioners Alam Sher and Asmatullah and (ii)' Criminal Miscellaneous s No.56 of 1997 for cancellation of bail granted to the accused-respondents Inayatullah and Ranju by the order of the learned Special Judge, D.I. Khan vide his order, dated 21-11-1996.

2. A case was registered at Police Station University, D.I. Khan, against the accused herein and their absconding co-accused namely Nosher and Falak sher under section 302/148/149, P.P.C. on the report of complainant Haji Abdul Rafiq made by him on the spot to Ghulam Shabir A.S.-I. who arrived there over telephonic message from the complainant about the occurrence.

3. The role, attributed to the petitioners and respondents is that Asmatullah, Alam Sher petitioners alongwith absconding accused Nosher, Falak Sher and Inayatullah and Ranju respondents in Criminal Miscellaneous No.56 of 1997 arrived at the scene of occurrence, accused-respondents Inayatullah, Ranju and absconding accused Nosher who were empty-handed apprehended the brother of complainant, deceased Muhammad Mazhar who was going in a street of the village near a mosque. Eye-witnesses Ghulam Yasin and Muhammad Zarif were also passing in the street behind the deceased. The said three accused including the two accused-respondents Inayatullah and Ranju with absconding accused Nosher started pushing the deceased towards their houses. Accused- petitioner Asmatullah also made some fire shots in the air while other accused petitioners Alamsher and absconding accused were going alongwith the said three accused who were allegedly unarmed and pushing the deceased. The eye witnesses Ghulam Yasin and Muhammad Zarif tried to rescue the deceased from the clutches of the accused but failed. Accused Asmatullah, Falaksher and Alamsher then started firing at the deceased who was being dragged by the abovementioned accused. The deceased then fell down but was dragged towards the houses of the accused. The said eye-witnesses informed the complainant who happened to be in the house who informed the police on phone about the occurrence and after arrival of the police, went to the spot, where the dead body of the deceased was lying in front of the house of the accused. Motive for occurrence stated to be that few months prior to the present occurrence younger brother of the accused namely Aurangzeb was injured for which deceased Muhammad Mazhar and one Muhammad Zafar were charged.

4. Learned counsel for accused-petitioners Alam -Sher and Asmatullah, Mr. Sanaullah Khan Gandapur, Advocate, contended that there are five inlet wounds on the person of the deceased for which three accused have been charged including the absconding accused Falak Sher, and therefore, no one can say with certainty that who amongst the said three is responsible for the injuries and as such a doubt has been created and benefit of which could be extended to the accused petitioners at bail stage. He further submitted that registration of case at the spot is not approved by the superior Courts and further medical evidence is not in line with the prosecution case as inlet wounds are not in consonance with the version given in the F.I.R.

5. So far as accused respondents Inayatullah and Ranju are concerned, the learned counsel submitted in view of the insignificant role attributed to respondents, their case is distinguishable from that of other accused and as they were empty-handed, therefore, common intention could not be ascribed to them and further urged that as the accused-respondents are enjoying the concession of bail since 21-I1-1996, so it would not be fair to cancel the same when the accused-respondents have not misused the concession.

6. Mr. Muhammad Karim Anjam Qasooria, Advocate/learned counsel for the complainant submits that the accused-petitioners in Criminal Miscellaneous No.289 of 1996 and accused-respondents in Criminal Miscellaneous No.56 of 1997 are prima facie connected with the commission of crime and reasonable grounds more than suspicion do exist to connect them with the commission of offence. All the six accused are directly charged in a promptly lodged F.I.R. Two eye-witnesses Ghulam Yasin and Muhammad Zarif fully corroborated the F.I.R. and they are simply co-villagers of both the parties nor related to complainant party neither inimical towards the accused. Circumstantial evidence and medical evidence are completely in line with the prosecution case. Injuries on the person of deceased too are in consonance with the number of accused.

7. The bail was granted to accused respondents Inayatullah and Ranju by the learned Special Judge on the sole grouped that they were empty-handed is highly unjustified, unfair and against the norms of justice in the manner the murder was committed. The accused-respondents have participated in the occurrence and have facilitated the commission of offence, although they have not inflicted any injury to the deceased but at the very face of it, it is a case of participation and facilitation on the part of the accused-respondents.

8. I have gone through the record of the case and considered the arguments advanced by the learned counsel of both the parties.

9. Accused-petitioners are named in a promptly lodged F.I.R. The two eye-witnesses named in the F.I.R. have fully corroborated the F.I.R. and further the said eye-witnesses are disinterested witnesses being not related to deceased party nor inimical towards the accused and having equal relation that of co -villagers with both the parties. As the eye-witnesses were co-villagers and above all tried to rescue the deceased from the hands of the accused, therefore, no question of mistaken identification arises in the circumstances. As per site plan, sufficient light was shown at the spot because two electric bulbs were taken into possession by the Investigating Officer from the spot. Medical evidence too supports the prosecution case. Murder was committed by the accused-petitioners' allegedly in a very brutal manner and as such the accused-petitioners Alam Sher and Asmatullah are prima facie connected with the commission of offence, and therefore, are not entitled to be released on bail, hence their bail petition is dismissed accordingly.

10. No doubt, no injury had been attributed to the accused-respondents Inayatullah and Ranju but as per version in the F.I.R., they caught hold of the deceased and pushed him towards their houses at first instance, and thereafter, when co-accused fired at the deceased and injured him, they dragged the deceased towards their houses, and therefore, facilitated the commission of murder. The petitioners while catching hold of the deceased and pushing him towards their houses, were accompanied by the co-accused who were duly armed with klashnikovs and when they fired at the deceased and injured him, even then the accused-respondents dragged the body of deceased who was injured then. All this shows that the accused-respondents have fully participated in the commission of offence by sharing the common intention and have formed unlawful assembly for a common object that is to kill the deceased. However, all these matters could only be thrashed out at the trial but for the purpose of this bail cancellation petition, reasonable grounds do exist to connect the accused -respondents with the commission of crime and, therefore, the concession of bail granted to the accused-respondents by the order, dated 21-11-1996 of the learned Special Judge, D.I. Khan is recalled. Accused-respondents are present in Court and taken into custody and sent to judicial lock-up to wait their trial as under trial prisoners. H.B.T./2166/P Bail cancelled.