P L D 1979 Lahore 518 (PLP)

This is an application for bail filed by the petitioner who is accused along with 4 others in a case registered against them under section 302/148/ 149, P. P. C. vide F.1. R. No. 245 dated 14-7-1976 with Police Station Kahna, District Lahore. The report in the case was made by one Muhammad Shafi, brother of the deceased. The allegations are that on 14-7-1976 at about 11-30 a. m. the complainant along with deceased Ghulam Rasool, Muhammad Rafiq son of Muhammad Din and Rashid son of Pir Bakhsh prepared to go on a Chaliswan in village Rakh Ladekh. Ghulam Rasool deceased came out in the lane first and just as the complainant along with Muhammad Rafiq and Muhammad Rashid came out of their Havell, the petitioner armed with a '12 bore gun, co-accused Salah-ud-Din armed with a '12 bore pistol, Ali Muhammad alias Babu and Khushi Muhammad sons of Rahim Bakhsh and Ashraf son of Khushi Muhammad armed with sotas suddenly emerged from the Haveli of Noor Muhammad Jat. Ali Muhammad, Khushi Muhammad and Ashraf gave Lalkara that they will teach a lesson to Ghulam Rasool of the abuses which he had hurled to the Panchayat, whereupon Barkat Ali petitioner and his co-accus-.d Salah-ud-Din fired one shot each with their gun and pistol respectively which hit at the back of the deceased who fell on the ground. On the hue and cry of the complainant etc. the accused ran away. The motive ascribed in the F. I. R. is a quarrel which took place 15/20 days prior to the occurrence, about the theft of two buffaloes of the deceased which were allegedly stolen by Salahud-Din, Ashraf and Khushi Muhammad co-accused at the instance of Barkat Ali petitioner. In connection with the said alleged theft a Panchyat was convened in which an altercation took place between the deceased and the petitioner. It is alleged that the petitioner and his party murdered the deceased Ghulam Rasool to avenge the said insult.

2. The learned counsel for the petitioner submitted that during the investigation, except Salah-ud-Din, all the other accused persons, including the petitioner named in the F.

1. R., have been found by the Crimes Branch as not involved in the case, and that during the said investigation it has been found that Salah-ud-Din and one Rehmat alias Kali are, in fact, the persons who committed the crime. It was also contended by the learned counsel that implication of petitioner is mala fide on account of the enmity between the complainant and the petitioner. It was further submitted that the post-mortem report is to the effect that both injuries are the result of one pistol shot which pistol has been recovered from Rahmat alias Kali after he had been arrested. It was argued that Rahmat has already been allowed bail and out of the 5 accused named in the F. I. R. 3 others than Salah-ud-Din, were also allowed bail by the learned Sessions Judge, whereas Barkat petitioner whose case is also on the same premises has been refused bail.

3. The learned counsel went on to submit that it is a case of further inquiry and falls within the scope of section 497 (2), Cr. P. C. inasmuch as the investigation by the local police found all accused named in the F. I. R. as involved in the case but the finding of investigation by one of the Superintendents of Police, Crimes Branch, is that except Salah-ud-Din, none of the co-accused who are named in the F. I. R. are guilty and has recommended that they should be placed in Column No. 2 of the challan. It was alto urged by the learned counsel for the petitioner that 2 years have since passed already and the trial is not likely to commence for another minimum period of a year or so.

4. Reliance has been placed in support of the above contentions on Rehmat Ullah alias Rehman v. State and another 1970 S C M R 299, Muhammad Hayat v. The State 1974 P Cr. L J 450 and Muhammad Aslam v. The State 1974 P Cr. L J Note 136 at p. 85.

5. On the other hand, the learned counsel appearing on behalf of the State and the complainant have opposed the bail. It is contended by them that there is motive directly of Barkat Ali petitioner established from the F. I. R. that the petitioner is specifically named in the F. I. R. and attributed a role having fired with a gun on the deceased. It is a day light occurrence and there could not be any wrong identification, that merely mentioning of name of the petitioner in Column No. 2 is of no consequence, that the investigation had been conducted first by the Local Police and thereafter by Deputy Superintendent of Police (Crimes) and then by a Superintendent of Police, Crimes Branch, who all found the petitioner as involved in the case directly and that it is only the fourth Investigating Officer, i. e. another subsequently appointed Superintendent of Police, Crimes Branch who has given finding that actual culprits are Salah-ud-Din and Rehmat only. It was submitted that in view of different versions of investigation it has no longer remained a case of further inquiry and it is for the trial Court now to judge the matter. Reliance has been placed on Muhammad Sajjad v. The State 1977 P Cr. L J 219.

6. The contentions raised by the learned counsel for the petitioner mostly touch the merits of the case. It is not appropriate to comment upon them at this stage as any observation by this Court on any of the matters may prejudice the case of either party. It may, however, be observed that the contention raised by the learned counsel that it is a case of further inquiry and falls under section 497 (2), Cr. P. C. does not have much force. It isl not necessary that as one out of the four police Investigating Officers maintained the view that the petitioner does not deserve to be challaned, in is a case covered by section 497(2), Cr. P. C. In a similar situation the' Supreme Court, in the case of Ameer Khan v. The State 1970 S C M R 769 held that in such situation and circumstances the case is not necessarily covered by section 497 (2). Almost similar view has been expressed by the Supreme Court in case Gul Ahmad v. Masam Khan and 3 others 1977 S C M R 27.

7. Similarly the ground of delay of 2 years in commencement of trial is also not a ground for allowing bail. Refer Anwar Khan v. The State 1978 S C M R 314.

8. The facts of the case as brought out above, clearly indicate that the accused is named in the F. I. R. he has been attributed a specific role of having fired with a gun and it is also alleged that the deceased died of an injury from the shot fired by the petitioner. There is motive also stated in the F. I. R. with which the petitioner is directly concerned. In the circumstances there are reasonable grounds to connect the accused to the crime which is punishable with death or imprisonment for life.

9. In view of the above position, I do not feel inclined to allow bail to the petitioner at this stage. As a result this application is dismissed. S. Q. Petition dismissed.