1984 P Cr (PLP)

Sardar Muhammad Khurshid for the State. This petition seeks cancellation of bail allowed to respondents 2 to 4 by the learned Sessions Judge, Gujranwala, on the 5th May, 1983. Criminal Miscellaneous No. 1481-B of 1983, has been moved for cancella tion of bail of Muhammad Yousaf, respondent 2 in that petition, granted by the learned Sessions Judge, Gujranwala. This order will dispose of both the petitions.

2. The facts of the case laid against the accused-respondents, as can be gathered from the first information report, may be stated in the following words. The complainant and the accused parties received water from the Government installed tube-well No. 2, Jhang Branch, for irrigating their lands. The turn of water of the complainant party started from sunrise on Fridays and lasted for twenty-four hours. As the electric motor of the tube-well went out of order it stopped pumping out water. The accused party got the motor repaired at their own expense and, therefore, prevented the complainant party from getting water from the tube-well according to their turn in the morning of Friday, the 20th August, 1982. Nazir, brother of the complainant and the deceased, who had gone to irrigate land with water from the tube-well in the morning returned home and told Muhammad Hanif, complainant, that Sardar (respondent 2), Sultan Ahmad (respondent 3), Gulzar Ahmad (respondent 4), Muhammad Yousaf (respondent 2) in Criminal Miscellaneous No. 1481-B of 1983) and Khizar, who were at the nakka, had stopped him from getting water. Accompanied his brothers, Nazir and Muhammad Zarif deceased, and one Muhammad Ashraf, the complainant went to the nakka at about 6.30 a.m. Gulzar Ahmad, Muhammad Yousaf and Khizar, each armed with a gun, Sardar and Sultan Ahmad, empty handed, were found at the spot. Upon the complainant's inquiry the accused replied that as they had got the electric motor of the tube-well repaired by spending Rs. 1,000 they would not permit the complainant party to irrigate from the tube-well. As the members of the complainant party insisted upon getting water Sardar and Sultan Ahmad raised lalkara and exhorted Gulzar Ahmad, Muhammad Yousaf and Khizar to attack. Muhammad Yousaf opened fire with his gun and the shot hit in the abdomen of Muhammad Zarif. The shot fired by Gulzar Ahmad hit the deceased in the left parietal region. The deceased fell down on the ground. Khizar fired a shot which hit the complainant on the chest. Another shot fired by Muhammad Yousaf hit the left knee of Muhammad Ashraf. The accused fled away towards the village and Muhammad Zarif died at the spot.

3. In the first round of investigation the Sub-Divisional Police Officer, Hafizabad, found that all the five accused, namely, Sardar, Sultan Ahmad, Gulzar Ahmad. Muhammad Yousaf and Khizar had participated in the commission of crime. On the application of the accused party the investigation was transferred to the Inspector of Police, C. I. A., Gujran wala, who accepted the plea of alibi set up by Muhammad Yousaf though he rejected such a plea taken up by Gulzar Ahmad. On another application by the accused the investigation was transferred again to the Superinten dent of Police, Gujrat, under whose directions the case was investigated by the Deputy Superintendent of Police, Headquarters, Gujrat. The report of the Superintendent of Police, Gujrat, was that Gulzar Ahmad and Muhammad Yousaf were not present at the spot at the time of occurrence. On the complainant's move the Inspector-General of Police entrusted the investigation to the Crimes Branch. The Deputy Superintendent of Police, Crimes Branch, Lahore, endorsed the absence of Gulzar Ahmad and Muhammad Yousaf at the spot when the occurrence took place. When the matter was placed before the Inspector-General of Police he ordered that Gulzar Ahmad and Muhammad Yousaf should be placed in column 2 of the police report while Sardar, Sultan Ahmad and Khizar should be entered as accused in column 3 of the report. The police as a matter of fact treated Gulzar Ahmad and Muhammad Yousaf to be innocent.

4. On the basis of the finding of the police that Gulzar Ahmad and Muhammad Yousaf were innocent the learned Sessions Judge considered their case to be one of further inquiry and admitted them to bail. As Sardar and Sultan Ahmad were alleged to be empty handed at the time of occurrence they were enlarged on bail. The petition for cancellation of bail of the last mentioned two accused was dismissed by the order of this Court dated the 18th June, 1983.

5. The question demanding determination is whether bail granted to Gulzar Ahmad and Muhammad Yousaf in the circumstances should be cancelled. The learned counsel for the complainant-petitioner contended that the occurrence had taken place in the land of the complainant in broad daylight and there could be no question of mistaking the identity of the assailants. He maintained that specific parts of firing gun shots had been assigned to Gulzar Ahmad and Muhammad Yousaf to the first informa tion report which had been lodged without delay and, therefore, their plea of alibi, which was manufactured one, could not have been accepted as justification for allowing them bail. He said that the case had not been faithfully investigated after the investigation had passed out of the hands of the Sub-Divisional Police Officer, Hafizabad, because the Members of Majlis-i-Shoora had been pressurising the investigating officers to record finding favourable to the accused.

6. The learned counsel for the accused-respondents submitted that Gulzar Ahmad, who was a Municipal Councillor, had been attending a meeting of the Councillors at the house of Mirza Abdur Rashid, another Councillor, at Hafizabad. He pointed out that six Councillors, who had been in meeting with Gulzar Ahmad, bad appeared before the Investigating Officer to bear out his presence with them at the alleged time of occurrence. He has also produced affidavits of these Councillors to that effect. According to the learned counsel Muhammad Yousaf produced evidence before the investigating agency that he bad been in Gahri Awan, a village ten miles away from the place of occurrence, at the time the occurrence is said to have taken place.

7. The learned counsel for the respondents drew attention to the fact that on the 12th February, 1981, Gulzar Ahmad had accompanied Shahu, son of Kala, to Police Station, Hafizabad where Shahu had got registered a case under section 302/34 of the Pakistan Penal Code against Muhammad Hanif complainant and his brothers, Nazir and Siddique, and that it was out of that grudge that the complainant had named Gulzar Ahmad and Muhammad Yousaf as culprits in the instant case.

8. Be that as it may at least three different agencies of the police department have found that Muhammad Yousaf was not present at the spot and that he did not commit the offence attributed to him. Similar is finding in respect of Gulzar Ahmad by two investigating agencies of the police. In these circumstances the impugned order of the learned Sessions Judge treating the case of Gulzar Ahmad and Muhammad Yousaf to be one of further inquiry and releasing them on bail cannot be said to be perverse or arbitrary. Therefore, it does not demand interference by this Court. The petitions for cancellation of bail are dismissed. M. Y. H. Petition dismissed.