1979 P Cr (PLP)

This bail application arises in a case registered against the petitioner and certain others under section 302/307/454/148/149, P. P. C. with Police Station Sadar, Sialkot vide F. I. R. No. 92 dated 8-4-1978 on the complaint of one Muhammad Siddique.

2. The allegations were that the accused persons entered the house of the complainant and inflicted injuries on his son Rifaqat Ali, his wife sister and an infant child, out of whom the first named Rifaqat Ali died of the injuries, whilst the others were injured. Earlier also, the petitioner moved an application for bail (Criminal Misc. No. 2599-B/1978, which was dismissed by my order dated 8-7-1978.

3. The learned counsel for the petitioner submitted that the investiga tion in the case has since been completed and challan has been put up in the Court. He further submitted that the case now is covered by section 497 (2), Cr. P. C. Elaborating his contention he said that the investigation was first conducted by S. H. O. of Police Station Sadar, Sialkot which investigation was supervised by the A. S. P., Sialkot. After investigation was concluded it was stated by the Investigating Officer that Barkat, another accused and Muhammad Akram, the present petitioners were not involved in the murder and did not participate in the commission of the offence, whilst the other three were only involved. This result was reached by the Investigating Officer in view of the statements of certain eye-witnesses produced before him in defence during investigation. On this basis the report under section 173, Cr. P. C. was drawn up for submission of the challan in the Court and in the said report the aforementioned two persons, namely Barkat co-accused and Muhammad Akram petitioner, were shown in Column No. 2.

4. He stated that thereafter the complainant party moved for reinvestiga tion of the case which re-investigation was conducted by an Inspector of the Crimes Branch who in his report although held that certain eye-witnesses have exonerated Barkat co-accused and Muhammad Akram petitioner, nevertheless, recommended submission of challan against all the five accused.

5. The next contention raised by the learned counsel was that motive ascribed in the F. I. R. stands belied by the same set of witnesses and the real motive that has come to light is that the sister of the accused Hamid was cut a joke at by Munir, brother of the deceased Rifaqat Ali on which a Panchayat was convened but on account of the absence of the complainant party the accused party got infuriated and assaulted them which resulted in the death of Rifaqat Ali. It was further submitted that in that assault Barkat co-accused and Muhammad Akram petitioner were not associated with the accused party. He in this regard relied on the statement of Muhammad Sadiq, Sardar Muhammad and Abdul Ghani recorded under sec tion 161, Cr. P. C.

6. On the other hand, the learned counsel for the State submitted that according to the F. I. R. all the eye-witnesses have given a clear version of the occurrence and named the petitioner and ascribed to him specific role of having inflicted injury on Rifaqat Ali deceased. He further submitted that the aforementioned three persons, namely Muhammad Sadiq; Sardar Muhammad and Abdul Ghani, who claimed to be the eye-witnesses, were not, in fact, the eye-witnesses of the occurrence and even their own statements are not consistent with each other. He referred to the statement of Abdul Ghani made on 8-4-1978 wherein he made an attempt to exonerate Barkat Ali and Muhammad Akram accused by stating that they did not accompany the other co-accused and remained in the Punchayat, whilst in his further statement recorded on 9-6-1978 he stated about the petitioner that he could not say with certainty whether he was with the accused party which made the assault. In the same statement he also said about Muhammad Siddiq, the other witness that he was not present in the village on that date and had left the residence there long ago and had shifted to Sialkot City. The learned counsel on this basis submitted that their statements are not worthy of credence even at this stage. He also went on to argue that the latest investigation has held all the accused guilty and challaned them. He further submitted that these are the matters which can be sifted at the trial stage after the evidence has been led, as these would touch the merits of the case to the ground of motive also, be submitted that that also is a pela which can be properly looked into after the evidence has been led.

7. The learned counsel for the petitioner has referred to Ha/1 Ahmad Khan v. The State (1968 P Cr: L J 1905), Rehmat Ullah alias ltehma v. State and another (1970 S C M R. 299) and Ibrahim v. The State (1969 P.Cr. L J 111) in support of his contentions.

8. I do not think any of these cited cases are relevant to the controversy involved in the present case. In the case in hand, the final investigation had found all the accused including the petitioner, as guilty and submitte4 a challan against all of them in the court. The Investigating Officer, in fact bad pointed out the irregularities committed by the previous Investigating Officer and ultimately held that notwithstanding the position that an stamp, had been made in the previous investigation to exonerate some accused the case against them is worth being put to trial. In this view of the matter it is no longer a case of further inquiry, but has become a case of judicial adjudication about the guilt or innocence of the accused. This necessarily means that the grounds touch the merits of the case and as such can be gone into only after the evidence had been led. I, therefore, find no reason, at this stage; to allow bail to the petitioner especially in view of the fact that the statement of Abdul Ghani recorded under section 161, Cr. P. C. who is, in fact, an alleged eye-witness produced in defence, does not exonerate unequivocably the present petitioner.

9. This bail application is, therefore, rejected.

10. Any observation about any matter made in this order is not to affect the merits of the case. Petition dismissed.