Ch. ZAHUR ILAHI vs The STATE

1. MUHAMMAD GUL, J.-This petition was directed against the order of 'the Lahore High Court dated the 6th February, 1976 whereby the learned Chief Justice for reasons to be recorded later refused to confirm pre-arrest bail of the petitioner herein earlier allowed to him ad interim on the 4th February, 1976. After hearing the petitioner's learned counsel Mr. M. Anwar and the learned Advocate-General, Punjab, for the State, at length, on the 12th February, 1976 we decided to convert the petition into regular criminal appeal and accepted the same and allowed bail to the appellant herein in the sum of Rs. 20,000 with and surety in the like amount. What follows are the reasons in support of that order.

2. The appellant is member of the National Assembly and has affiliation with the opposition group in the Assembly. He is accused of an offence under section 302/34/120-B, P. P. C. The allegation against him is that he entered into a criminal conspiracy with certain other persons in consequence of which Chaudri Muhammad Anwar Samma, a Member of the Punjab Legislative Assembly and a former Provincial Minister was shot dead at 12-15 p.m. On the 23rd January, 1976 in the Court of a First Class Magistrate at Gujrat. .

3. The F. I. R. Of the incident was lodged at 2'15 a.m. At P. S. Gujrat by Muhammad Akram, an eye- witness and cousin of the deceased who along with certain others had accompanied him is the jeep to the District Court on that fateful days, In the F.

1. R. Only two persons Ch. Muhammad Shafiand Irshad Ahmad were named as accused being concerned in the killing of the deceased.

4. The former is a close relative of the deceased both by blood and by marriage. But there is a bloodfeud between the two. Indeed, the deceased was an accused in the case relating to the murder of a brother of Muhammad Shafi but had secured bail in that case. Irshad Ahmad is a workman in the mill owned and managed by Muhammad Shafi. It is, however, important to point out that the appellant not named in the F. I. R. As being concerned in the offence either overtly or covertly. The two accused named in the F.

1. R. Are stated to have been arrested on the same day.

5. Indeed, Irshad was arrested on the spot.

6. From the statement of the case at the Bar by the learned Advocate---General, it appears that - the clue to the appellant having joined the conspiracy to murder Ch. Muhammad Anwar Samma was provided b% the confessional statement of lrshad Ahmad made before a Magistrate on the 3rd February, 1976 that is to say twelve days after the incident. Reliance was also placed on the statements of two others. Muhammad Ilyas and Khalid Mahmood who were examined by the investingating Officer under section 161, Cr. P. C., on the 2nd February,. 1976. Material portions from these statements were read in Court during the argument in the case.

7. On the basis of the statements these three persons, the case for the prosecution against the appellant appears to be that a month prior to the incident of murder, Muhammad Shafi co- accused collected Khalid Mahmood and Muhammad Ilyas from Gujranwala and took them to the appellant's house at Gujrat where the appellant tried to persuade them to join the designed to murder Ch. Muhammad Anwar Samma. On 22-1-1976 that is to say, a day prior to the incident.

8. Muhammad Sbafi and Irshad Ahmad co-accused and another Ranjha visited the appellant at his house in Gulberg where Muhammad Ilyas and Khalid Mahmood were already - present. They were once again persuaded by the appellant to join the conspiracy to murder Ch, Muhammad Anwar Samma, but they were reluctant so to do. They were however, asked to stay with the appellant for the night. Muhammad Shafi, Irshad Ahmad and Ranjha left early on the following morning on their errand I to murder Ch, Muhammad Anwar Samma. Khalid Mahmood and Muhammad 1lyas left for Gujranwala later in the afternoon. On the next day they learnt at Gujranwala through the newspaper reports that Ch. Muhammad Anwar Samma had been done to death.

9. Appellant's learned counsel submitted that the appellant was being named in the case mala fide to harass him because he belonged to the opposition group in the National Assembly. He also stated that over the period of - three years or so in the past, a large number of cases have been registered against the appellant in none of which proceedings have commenced so far and that some of such cases were later cancelled: It was also urged that the confessional statement of Irshad Ahmad and statements of Muhammad Ilyas and Khalid Mahmood recorded by the Police are not "legal evidence" in the case and cannot form the basis of "a reasonable belief" within the meaning of subsection (1) of section 497, Cr. P. C. That the appellant has been guilty of the offence with which he is being charged. He cited Maqbool Hussain v. State (PLD 1860SC382) in support of this part of his argument. Learned counsel laid great stress on the fact that there was no bloodfeud between the appellant and the deceased and that the prosecution case in that respect rested with the election rivalry between the appellant's nephew who was defeated by the deceased during the general election in 1970 when they were rival candidates for a seat in the Provincial Assembly. This according to learned counsel was too remote and inadequate a reason to impell the appellant to join hands with Muhammad Shafi co-accused to kill the deceased.

10. Learned Advocate-General on the other hand was at pains to show that the confessional statement of Irshad Abmad and the statements of Muhammad Ilyas and Khalid Mahmood recorded under section 161, Cr. P. C. Amply furnished "reasonable grounds for believing" that the appellant has been guilty of an offence punishable with death or transporta--tion for life and therefore he was not entitled to bail which after all was a concession and that in any case there was no ground for interference with the refusal of bail by the High Court to the appellant in exercise of its discretion. .

11. We have given our anxious consideration to the argument canvas--sed on each side. It would be unreasonable to expect this Court to give an exact definition of what would be a reasonable ground for the relevant purpose. Reason varies in its conclusion from man to man and from case to case and it is exiomatic that the circumstances of no two cases are alike. The outstanding fact in the case is that the appellant is not named as accused in the F. I. R. Which normally one] should have expected if he had made a common cause with Muhammad Shafi who had bloodfeud with the deceased, to liquidate the deceased. The fact assumes particular significance when we bear in mind that the F. J. R. Was lodged by a confidant of the deceased. The fact that the A confessional statement of the accused was not recorded until 12 days after the incident and that of the other two witnesses 11 days is another notewhorthy factor. The allegation that the appellant has been named as accused in a series of criminal cases registered at various places and yet no proceedings have taken so far against him, which incidentally was supported by an affidavit, was not refused on behalf of the State. In these circumstances, in our opinion, the appellant's case fails within the purview of the rule laid down. By the Federal Court in Crown v. Khushi Muhammad (PLD 1953 FC 170) and this Court in Sadiq Ali v. State (2) and would therefore eminently justify the grant of bail to the appellant. In any event the allegation against the appellant require further enquiry and therefore his case would fall to be dealt with under subsection (PLD 1966 SC 589) of section 497, Cr. P. C.

12. Accordingly we accept the appeal and allow bail to the appellant in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the Assistant Registrar of this Court.