MALIK MUHAMMAD HAYAT Versus RIAZ HUSSAIN

Mumtaz son of Sarfraz and his brother‑ Muhammad Nawaz were granted after arrest bail by the Sessions Judge, Khushab in the case registered against them and six others under section 302/148/149, P.P.C. at Police Station Khushab.

2. Muhammad Hayat complainant in the case has moved petition for` cancellation of their bail.

3. According to F.I.R. both the respondents armed with guns had attacked Sher Muhammad, after coming out of the Sarkandas on Khushab Sandral Link Road, in the area of village Shiwala. They were accompanied by six others who were also armed with fire‑arms.

On the Lalkara raised Muhammad Nawaz, Mumtaz respondents had fired a shot hitting Sher Muhammad on the chest. Muhammad Nawaz respondent had then fired a shot striking Sher Muhammad on the back. He fell down from the bicycle, whereupon the co‑accused of the respondents also gave him injuries by firing their respective guns.

4. Motive for the occurrence was that Sher Muhammad who was challaned alongwith others for the murder of Sarfraz father of the respondents was acquitted in that case. In that connection mention has also been made about‑ the murder of Ghulam Abbas Patwari, a companion of Sarfraz.

5. Learned Sessions Judge granted bail to the respondents and the other co‑accused, considering the fact that all of them were declared innocent by the local police and that their view was confirmed by the D.S.P., Khushab and D.S.P. Shahpur, who were entrusted with the investigation of the case, later, one after the other. The local police had also effected the arrest of Imdad Hussain, Altaf Hussain and Muhammad Mumtaz (not the respondents), for having committed this occurrence.

Although it was brought to the notice of learned Sessions Judge that the D.S.P. Bhalwal who conducted investigation after the investigation of D.S.P. Shahpur, had recommended challaning the respondents and the other sic accused in the F .I . R . (the D.S.P. had, however, expressed the view that participation of Riaz and Amjad, named as accused in the F.I.R. was doubtful), yet the learned Judge considered the case of the respondents and their co‑accused worth granting bail.

6. It may be mentioned here that according to the Sub‑Inspector who has brought the record, challan has been submitted against the respondents and others per investigation by the D.S.P. Bhalwal. The three persons, i.e. Imdad Hussain etc. arrested by the local police after investigation, have also been challaned.

7. Learned counsel for the petitioner contended that the investigation conducted by the local police and the two Deputy Superintendents of Police was biased one and that the last investigation conducted by the D.S.P. Bhalwal under the orders of the Deputy Inspector‑General of Police, Sargodha Range, was in line with the allegations levelled in the F.I.R. and so the learned Sessions Judge should not have granted bail to the respondents, particularly keeping in view the fact that they were assigned specific role of having caused specific injury, each resulting in death.

8. Learned counsel for the respondents opposed the petition for cancellation of bail, contending that the local police not only had found the respondents to be innocent but had arrested three other persons also to have actually committed the murder. Learned counsel contended that in view of the declaration of innocence by three successive Investigating Agencies, including two Deputy Superintendents of Police, there was enough ground to consider that case of the respondents was of further enquiry. Learned counsel also submitted that the superior Courts have more than once declared that considerations for cancellation of bail are different from those for the grant of bail.

Learned counsel cited Muhammad Aslam v. The State 1986 PCr.LJ 1025, in support of the contention that the accused declared innocent by successive Investigating Agencies deserves the grant of bail.

9. The fact of the respondents having been declared innocent by the local police as well as by the Deputy Superintendents of Police, Khushab and Shahpur, has not been controverted by learned, counsel for the petitioner, nor the fact of arrest of the three persons (other than the ones named in the F.I.R.), by the local Police has been denied. Similarly, learned counsel for the respondents has also not denied that the D.S.P. Bhalwal who conducted last investigation, expressed the opinion that the respondents had participated in the occurrence and so they should be challaned. The fact of the respondents having been challaned as a result of the last investigation alongwith others also stands admitted.

10. Apparently the case of a person, declared innocent in successive investigations would earn the benefit of concession of bail, but in the case in hand the result of the last investigation which has also been conducted by a gazetted Police Officer, is that, the respondents stand challaned. Their participation in the occurrence as well as the part played by them at the time of occurrence has been accepted by the D.S.P. Learned Sessions Judge while granting bail to the respondents did not specifically advert to the fact that each one of the respondents was assigned the role of having inflicted fatal blows.

The other aspect, which the learned Sessions Judge failed to take into account is that the present occurrence was a sequel to avenging the murder of Muhammad Sarfraz father of the respondents. The respondents, thus were directly connected with the motive for occurrence. These two facts which the learned Sessions Judge failed to take note of, coupled with the result of last investigation, lead me to conclude that learned Sessions Judge failed to consider that reasonable grounds did not appear about the respondents not having participated in the occurrence.

The authority cited by learned counsel for the respondents is not applicable to the case in hand as in that case although as a result of the last investigation the petitioner who was granted bail, was challaned but in that case it was also opined by the Investigating Officer that the fatal shot assigned to him, had not been fired by him, and that fatal shot had been fired by another accused. He was challaned only on the basis of the conclusions arrived at by the Investigating Officer, of having participated in the occurrence. In the case in hand the respondents have not only been challaned for having participated in the occurrence but the part assigned to them has also been accepted by the Investigating Officer.

For the foregoing reasons, I am inclined to accept this petition. The bail granted to the respondents by the Sessions Judge, Khushab, vide order, dated 18th May, 1987, is cancelled.

S. A . /M‑818/L Bail cancelled