P L D 1975 Lahore 282 (PLP)

Mahmood Shafique alias Muhammad Shafiq petitioner is facing enquiry along with his co-accused in a case under section 302/307/34, P. P. C. registered against them since 8th of October 1973, at Police Station Baghbanpura and was refused bail by the Additional Sessions Judge, Lahore. He has consequently approached this Court for the same on the ground of false implication. A notice was, therefore, issued and I have heard the counsel of the parties and, also perused the file brought by the investigation Officer. '

2. It was alleged in the report lodged by . Muhammad Nawaz P. W., -the real brother of Muhammad Yousaf (deceased), the husband of Mst. Munawar Begum (deceased) that oh return from the bazar at the eventful time he found Mahmood Shafique petitioner, with a gun, his co-accused Hasan and his two sons Bashir and Nazir with pistol each in their hands present in the courtyard of his house and Within his sight he fired a shot :at Muhammad Yousaf. who fell down dead on which Mst. Munawar, the wife of said- deceased, rushed in saying what cruelty he had committed when -Abe three co-accused of Mahmood Shafique petitioner exhorted him to kill her as well so that she might not survive to figure as an eye-witness against him in this case and on their behest he fired the second shot at her resulting in her death. Mst. Sakina, the other sister of Muhammad Nawaz, informant, Abdul Majid and Muhammad Bashir are said to have witnessed this occurrence when the petitioner and his co-accused spade good their escape firing in the air.

3. As a result of the investigation that followed these three co-accused of Mahmood Sbafique petitioner were held innocent and placed in column No.

2. In order to assert his innocence Mahmood Shafique petitioner surrendered himself before the Ilaqa Magistrate on 17th October 1973, with a petition that he was falsely implicated in the case and he should be sent to the judicial lock-up with a direction to the police to produce the witnesses for his identification as none of them knew him but in spite-of three successive orders of the Magistrate to that effect the police did not make arrangements for the desired identification in jail and put the challan in Court against him.

4. In the course of the enquiry Muhammad Bashir, the alleged eye witness, named in-the first information report, did not support the. prosecu tion while the other Abdul Majid was given up as won over. Even Muhammad Hasan (P. W. 10) on whose taxi-cab the petitioner was said to have come to the place of occurrence and escaped after this murder had `let down the prosecution.

5. It was urged that after the application of the petitioner for his identi fication in order to facilitate it Muhammad Bashir, Abdul Maiid, Muhammad Sadique, the alleged eye-witnesses, were sent to judicial lock-up in a case under section 107/151, Cr. P. C. with factitious names to see Mahmood Shafique petitioner there for making sure of his identification and then got released on bail which was also brought to the notice of the Ilaqa Magistrate and this fact has been confirmed by Muhammad Bashir P. W. in his statement during the enquiry.

6. The licensed gun of Ghulam Nabi, the father of the petitioner, was taken into possession by the police as the alleged weapon of offence but the report of the Forensic Science Laboratory did not confirm it. Some other witnesses of recoveries have also damaged the prosecution case against him during their statement made in Court.

7. As regards his objection about his identity reliance was placed on Pull Bench case of Calcutta High Court reported as Malla Khan Kabuli v. Emperor A I R 1934 Cal. 169 wherein the accused had likewise raised this defence from the very first moment and was observed that if ever there was a case where .it was essential that the strictest possible adherence to the negations with regard to identification should be made this was one, yet we are amazed to find that no attempt was made to hold a test identification which was the only safe way of ascertaining whether the witnesses for the prosecution could be relied upon. In view of the fact that prosecution had not bothered to take notice of this challenge by the petitioner in respect of his false implication, the negative report about his gun; the lack of support from the two eye witnesses named in the first information report, from among the outsiders. the relevant taxi-driver in whose taxi he had gone to the spot and escaped after committing these murders, the admitted animus of the other witnesses, who claimed to be the, inmates of this house and the doubt arising of the implication of four innocent persons in this case who were shown in column No. 2, the participation of Mahmood shafique petitioner in the[ alleged crime would certainly call for a further enquiry in the matte entitling him to bail under section 497 (2), Cr P. C. I have, therefore, to accept this petition and direct that he shall be released from custody on his furnishing a bond in the sum of Rs, 10,000 (Rs ten thousand) with one surety in the like amount to the satisfaction of the Ilaqa/Duty Magistrate. S. A. H. Bail allowed.