MUHAMMAD FAYYAZ AHMAD Versus STATE

1. ANWARUL HAQ, J. ‑After hearing the learned counsel for the petitioner, Muhammad Fayyaz Ahmad, as well as the learned counsel appearing for the State we have decided to convert this petition into an appeal dispose it of accordingly.

2. In the First Information Report, made in writing by one Niaz Ahmad Khan at 0.15 a m. on 6‑12‑75 at Police Station Shahr Farid, concerning the death of two brothers, their mother, their sister and their maid servant, in an attack launched by one Ayyaz Khan and others, it was stated in the last sentence that the crime had been committed at the instance of the present appellant Muhammad Fayyaz Ahmad, who himself was not present at the spot and had in fact gone away from the village fifteen or twenty days before the occurrence. It was asserted that the accused Bahrain etc, were the proteges of the appellant. It may be stated that the appellant is the younger brother of the said Ayyaz Khan.‑.

3. The appellant is stated to be a substantial landlord or village Dulls Bhadera in tehsil Chishtian, District Bahawalnagar. He proceeded to Bangkok on 25‑11‑1974 and returned to Karachi on 11‑12‑1974. The murders had already taken place at about 8 p.m. on 5‑t2‑1974. He applied for flail before arrest to the learned Sessions Judge, Bahawalnagar. Interim bail was granted, but it was not confirmed. He then moved the High Court, but a learned Single Judge refused the prayer by his order dated 3‑2‑1975.

4. It is submitted by Mr. M. Anwar, learned counsel for the appellant, that according to the prosecution itself the appellant was not present at the spot when the incident took place, nor was, he, in fact, present in the country on that date. He submits that the appellant has been falsely implicated owing to the existence of enmity between the first informant Niaz Ahmad and the appellant, owing to certain matrimonial disputes. Niaz Ahmad is a first cousin of the appellant, and the murdered family included the appellant's step‑mother, her two sons‑ and daughter. 1t is submitted that the learned Judge in the High Court was influenced by mere conjectures and surmises in coming‑to the conclusion that there was evidence on the record to connect the appellant with the crime.

5. On behalf the State it is submitted that the appellant had the motive, and that there is evidence to show that the hired assassins had previous association with the appellant, and there is also evidence of one shakoor who heard a conversation between the appellant and his brother Ayyaz Khan, a month before the occurrence, which indicated that the appellant was conspiring to kill bit step brothers etc. There is also said to be an extra‑judicial confession made lay the appellant before the maternal uncle of the fast informant.

6. We do not wish 'to express any opinion as to that merits of the evidence sought to be relied upon by the prosecution for connecting the appellant with the crime. Suffice it to say that, after examining this material, with the help of the learned counsel for the parties, we are of the view that it is pre‑mature at this stage to hold that there are indeed reasonable grounds for believing that the appellant is guilty of an offence punishable with death or transportation for lift. In view of the admitted absence of the appellant from Pakistan on the date of the incident, we consider that it is a fit case where bail should be allowed at this‑ stage.

7. We would accordingly accept this appeal and direct that the appellant tie released on bail in the sum of Rupees Twenty thousand only with one surety in the like amount to the satisfaction of the committing Magistrate.

8. We would also like to observe that if during the commitment proceedings satisfactory evidence is brought on the record to show the existence of a prima facie case against the appellant and he is committed to the Court of Session, then the learned Magistrate or‑ the Sessions Judge would be at liberty to cancel the bail granted by us to the appellant at this stage.

9. Bail allowed.