1977 P Cr (PLP)

2. The allegations in the F. I. R. briefly are that Muhammad Anwar Goraya deceased (the step‑brother of the three petitioners), was known to Khurshid Ahmed (the first informant). At 8 p. m. on 20.1‑73, the latter, along with Ch. Rehmat Ali, went to see the deceased at his poultry farm. When they reached near the said poultry farm, they heard the report of gun fire from its north‑eastern room. Both of them ran and entered courtyard of the building and saw two persons, whom they identified as Nusrat and Shaman co‑accused, whom they knew before‑hand. Both were armed with .12 bore pistols and had fired inside the room, while standing at the door of the room. Muhammad Anwar Goraya deceased was shouting for help from inside. The above‑mentioned P. Ws. raised a noise, whereupon the assailants escaped, along with their pistols by jumping over the surrounding wall. The P. Ws. entered the kothri (room) and found Muhammad Anwar lying in an injured condition. He died shortly after wards.

3. The motive for the offence is mentioned in the F. I. It. as follows A day prior to the occurrence at about 9/10 a. m. Muhammad Anwar deceased had visited Khurshid Ahmad complainant at his adda. One Ch. Ghulam Mustafa was also there at that time. Muhammad Anwar deceased told them that he was the only child of his mother while Muhammad Aslam, Muhammad Nawaz and Muhammad Safdar were his step‑brothers from another mother; that they had formed one group and Ch. Shaukat Ali of Makhdoom Rashid, who is their paternal cousin, also helped them and that their intention was to kill him (i. e. Muhammad Anwar deceased) and to usurp his share of the property. Muhammad Anwar deceased also told them that Mohd. Nawaz petitioner, etc., had been attacking him now and then and cross- cases were pending between them in the Courts. He also informed them that Ch. Farzand Ali, M. P. A., resident of Chak No.

12. A H., Khanewal, who owed him (i. e. the deceased) Rs. 25,0007, had joined his step‑brothers in their design to kill him (Muhammad Anwar deceased) so that he (Ch. Farzand Ali) may not have to repay the said amount. In hearing this, Khurshid Ahmed (the first informant) advised the deceased to lodge a report about this, at Police Station, Kabirwala. At the end of the F. I. R. it is stated that the step‑brothers of the deceased, together with Shaukat Ali and Farzand Ali, etc., had got Muhammad Anwar murdered through Nusrat and Shaman co‑accused. As already mentioned the occurrence took place at about 8 p. m., on 26‑1‑1973. The F. I. R. was lodged at 12‑55 p. m. on the same night (by then the date having become 27‑1‑1973).

4. The learned counsel for the petitioners submitted, firstly, that the story given in the F. I. R. is wholly incorrect and that there was an inordinate delay in lodging the F. I. R. He submitted further that the second part of the F. I. R. giving the motive had been added subsequently by interpolation. He supported this argument by pointing out that neither section 34, P. P. C. nor section 109, P. P. C. were mentioned along with the offence in the karwai police at the end of the F: I. R. and that 'although the petitioners had made an application for the copy of the F. I. R. in the Court of the Assistant Commissioner, Khanewal, but could not get the same as the relevant Ahlmad put up a note on 5‑2‑1973 that the F. I. R. in question had not been received from the police station.

5. I am not inclined to agree with these submissions. It may be mentioned that although the occurrence took place at 8 p. m. on 26‑1‑1973, the F. I. R. was lodged on 27‑1‑1973, from which one would think that there is a delay of one day in lodging the report, but in fact this is not so because the F. I. R. was lodged at 12.55 in the night by which time the date had changed from 26th to 27th January, 1973. There is thus no "inordinate" delay in lodging the F.

1. R. The mere fact that section 109, P. P. C. has not been mentioned does not go to show that the later part of the F. I. R. (wherein the present petitioners are named), was incorporated subsequently. I have seen the original F. I. R., and notice that there is no indication whatsoever of any interpolation in it. It is, therefore, apparent that the omission to add section 109, P. P. C. is merely an oversight on the part of the concerned police official and has no other significance. The contention that the contents of the F. I. R. are false is something that shall be ascertained during the investigation and then decided in the inquiry and at the trial. This is no stage to form or express any view, one way or the other. The fact that the copy of the F. I. R. was not available with the Magistrate till 5‑2‑1973 does not by itself go to show that the F. I. R. had not been recorded on the night between 26th and 27th January, 1973. It has bean my experience at the bar that although section 157, Cr. P. C. requires that a copy of the F; I. R. must be sent to the relevant Magistrate forthwith yet in practice that is hardly ever done.

6. It was next contended by the learned counsel for the petitioners that Muhammad Aslam Goraya petitioner had admittedly reached the spot on the very first day and had actually taken the dead body after the post‑mortem examination, against a receipt issued by the Investigating Officer. It was argued that had he been suspected at that time, the police would surely have arrested Muhammad Aslam petitioner there and then. This argument overlooks the fact that the first informant had only expressed a suspicion against Muhammad Adam Goraya (who is an Advocate by profession, and his` two brothers anal the police naturally he stated to take any positive action by way of arrest, against a responsible person without any substantial evidence in support of the suspicion, but subsequently when the same was partially substantiated through the state ments recorded under section 161, C. P. C. the police felt it necessary to apprehend them so as to probe, further into the matter. It may also he mentioned that the Investigating Officer tried to record the statement of Muhammad Aslam petitioner on the very first day but the latter expressed his inability to make any statement saying that he was not feeling upto it as a result of the shock and that he would make a statement later on. But subsequently he never appeared before the Investigating Officer.

7. While the order was being dictated Raja Muhammad Anwar, the learned Counsel for the petitioners submitted that two altogether different persons, namely Rabnawaz and Ahmed alias Ahman had confessed before the police that, in fact, it were they who had committed the murder. I checked up the zimnis for this purpose and found that one Malik Mian Muhammad had made a statement before the Investigating Officer on 13‑2‑1973 to the effect Oat the aforementioned Rabnawaz and Rehman had appeared before him and confessed that about 17/18 days ago Muhammad Nawaz Goraya (petitioner No. 1. in C. M. No. 611/B of 1973) had called them and told them that they world be paid if they were to do away with Muhammad Anwar Goraya (deceased). The Investigating Officer then examined Rabnawaz and Ahman, who made similar statements. On reading this I fixed the case for rehearing on 21‑2‑1.973. The learned counsel for the petitioner stressed that in the presence of the confession by Rabnawaz and Ahman the prosecution case against Muhammad Aslam Goraya petitioner had become extremely doubtful and was covered by subsection (2) of section 497, Cr. P. C. I have gone through the above mentioned statements of Malik Mian Muhammad as well as Rabnawaz and Ahman. I am rather skeptical about the correctness of these statements, for it is surprising that Rabnawaz and Ahman should have suddenly come forward after 17 days of the occurrence, tan make a confession of their guilt before Malik Mian Muhammad, specially when they had not been named in the F. I. R. as the culprits. It has come to my notice since some time that a practice has arisen that same person4 wholly unconnected with the complainant's case come up and confess having committed the murder in question, thus attempting to cast a grave suspicion on the veracity of the version given in the F. I. R. which is then urged as a ground for the grant of bail before arrest. If bail before arrest is granted in such serious cases, it would become extremely difficult for the investigating agency to arrive at the truth, one way or the other.

8. Considering the facts of this case I am of the view that there are reasonable grounds that the petitioners are prima facie guilty of an offence punishable with death or transportation for life. There is, however, a distinction between the case of Muhammad Aslam Goraya, who is an Advocate of some Standing, from that of his brothers, Muhammad Nawaz Goraya and Muhammad Safdar Goraya inasmuch as the former is said to be suffering from serious heart trouble as shown by two medical certificates issued by Dr, M. Rashid Randhawa, a well‑known Heart Special at of Lahore, produced by his counsel. Dr. M. Rashid Randhawa had examined Muhammad Aslam Goraya petitioner had taken his E. C. G., which according to him (i. e. the doctor) shows widespread damage to the Anterolateral surface of heart. The doctor has opined that disease of this nature strikes without such of warning that the patient at such times, needs immediate and effective treatment by a qualified doctor and that it is impossible to get such treatment in the Jail. The case of Muhammad Aslam Goraya petitioner is, therefore, covered by the exceptions to the embargo, placed by subsection (1) of section 497, Cr. P. C. on the grant of bail to persons accused of offences punishable with death or transportation for life. In Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658) the petitioner who was accused of an offence under section 302, P. P. C. had been granted bail by the Learned Additional Sessions Judge inter alia on the ground of health. But on an application moved by the complainant the learned Singe Judge in the High Court cancelled the bail. The accused went up to the Supreme Court and although he had been committed to stand his trial before the Court of Session, the Supreme Court reversed the order of the High Court and made the follow ing observations "

In a case, where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or with transportation for lift, bail may yet be granted if he be sick or infirm, and the Additional Sessions Judge had recorded a clear finding to that effect. It was not a finding based on his opinion. It was founded on a report of a Medical Officer certifying that Abdul Aziz had been under treatment for an ailment for a month and a half

"

9. The net result of the above discussion is that I reject the application of Muhammad Nawaz Goraya and Muhammad Safdar Goraya (petitioner in Crl. Misc. No. 611/R of 1973) but 4ccept that of Muhammad Aslam Goraya (petitioner in Crl. Misc. No. 512/13 of 1973). The bail already granted to him is, therefore, confirmed. Order accordingly.