1975 P Cr (PLP)

Midi, Ata‑ur‑Rehman for the State. Inayat and Faqir Sain petitioners are being prosecuted in a case under sections 302/392/34, P. P. C. for committing in furtherance of their common intention the murder of Salamat (deceased) and robbing him of his wrist watch and Muhammad Ramzan, his companion, of his khes, on the evening of 27th November 1973. On being refused bail by the learned Additional Sessions Judge, Gujranwala, they have approached this Court for the same through a petition under section 498, Cr. P. C. on the ground of absence of their names in the first information report and belated implication in this offence.

2. A notice was, therefore, issued to the State and I have heard the counsel of the parties as also perused the police file today which has confirmed the above contention.

3. It was alleged that Muhammad Ramzan, informant, and Salamat (deceased) were returning to their village on the same cycle after enjoying a cinema show at Gujranwala and as they passed near the dera of Haji Amanullah on Mobarik Shah Road, they were intercepted by three uniden tified young boys of wheatish complexion 20/22 years of age wearing shirts and dhoties and armed with knives, who asked them to hand over all their belongings to them. One of them removed the khes of Muhammad Ramzan P. W. from over his person and the other tried to snatch the wrist watch of Salamat (deceased), who in resisting their attempt suffered stab wounds at their hands resulting in his death. Muhammad Ramzan P. W., however, claimed to have succeeded in giving them a slip alongwith his cycle.

4. The police could not trace the assailants till l0th of January 1974, when they received an affidavit of Hamid Shah, the father of Salamat (deceased) forwarded to them by the Ilaqa Magistrate, suspecting the two petitioners as the assailants of his son due to his illicit connections with Mst. Bholi, Salamat's sister. They were joined in the investigation and are said to have been identified by Muhammad Ramzan P. W. at a test identification parade and later led to the recovery of the above‑mentioned khes and the wrist watch respectively.

5. It is urged that Muhammad Ramzan P. W. being their co‑villager already knew them and if they had come so close to him to remove his khes from his person he could easily have identified them and named either of them in the F. I. R., so the test identification would not improve the prosecution case. The Investigating Officer admits that he bad taken them into custody from the Sessions Court after their earlier petition for pre‑arrest bail had been rejected.

6. It is argued that they were taken to the police station to afford an opportunity to the prosecution witnesses to see the petitioners in order to facilitate this identification. Anyhow they were not named in the firs information report and were implicated on suspicion after one and a half month with no direct evidence to support the prosecution case against them, while these two circumstances, i.e., the identification and recoveries of common pattern articles will call for a further enquiry about their complicity in this crime enabling them to bail under section 497 (2), Cr. P. C. I have therefore, to accept this petition and direct that they shall be released from custody on their furnishing a bond each in the sum of Rs.10,000 (Rs. ten thousand) with one surety each in the like amount to the satisfac tion of the Enquiry/Duty Magistrate Bail allowed.