ABDUL REHMAN vs THE STATE and another

' MUHAMMAD FARRUKH MAHMUD, J.--- Allah Bakhsh respondent No,2 along with' three others faced trial under section 302 for causing murders of Amjad and Abdul Rauf. All the four accused were convicted for offence under section 302(b), P.P.C. On two counts. Ghulam Mustafa and Shah Rasool co-accused were sentenced to death while Allah Bakhsh respondent and Zulfiqar were sentenced to imprisonment for life, on two counts.

2. During pendency of appeal vide order, dated 21-6-2006, learned Division Bench of Lahore High Court Lahore while suspending the sentence admitted Allah Bakhsh respondent to bail. The bail was granted to the respondent mainly on the grounds that the learned trial Court had observed in its judgment that the P.Ws. Were not present at the scene of occurrence and had not witnessed it.

Furthermore all the investigations had opined that complainant and P.Ws. Were not present at the scene of occurrence nor the occurrence had taken place in the manner asserted by the prosecution. The appellant, by leave of this Court has assailed the bail granting order of the learned Division Bench of Lahore High Court, Lahore.

3. The learned counsel for the appellant has argued that the police opinion was neither relevant nor admissible, hence, it could not be considered for grant of bail. He relied upon the cases of Moonda and others v. The State PLD 1958 SC (Pak.) 275, Farman Ali and 2 others v. The State 1993 SCM R 2055, Waris Ali and 5 others v. The State 2001 SCM R 640 and Babar Ali v. Bashir Ahmed and another 2007 SCM R 184. The learned counsel further contended that two persons had lost their lives during the occurrence; that respondent Allah Bakhsh admitted his presence and that his defence plea was rejected by the learned trial Court. The learned counsel has further argued that he has filed revision seeking enhancement of sentence against Allah Bakhsh respondent and that after his release on bail, Allah Bakhsh respondent has misused the concession of bail. In this regard, the learned counsel relied upon F.I.Rs, Nos.387, 388, 389, 390 and 391 of 2008 registered at Police Station City Muzaffargarh on 26-5-2008.

4. The learned Deputy Prosecutor-General Punjab has adopted the line of arguments of learned counsel for the appellant/complainant.

5. The learned counsel appearing on behalf of respondent No,2 Allah Bakhsh has submitted that the learned trial Court, on the basis of record, had observed that the P.Ws. Were not present at the time of occurrence and that the learned trial Court only supplemented its observation by referring to the opinion of all the Investigating Officers who appeared as witnesses during the trial.

6. We have heard the learned counsel for the parties and have also gone through the impugned order. Perusal of the record reveals that the learned Division Bench of the Lahore High Court had correctly referred to paragraph 23 of the judgment passed by the learned trial Court. The conclusion arrived at by the learned trial Court, that the witnesses were not present at the time of occurrence, was based on the reasons given in para. No,15 of the judgment and the conclusion was not based merely on the opinion of the police. The judgments relied upon by the learned counsel for the appellant do not apply to the circumstances of the case. The perusal of the judgment passed by the learned trial Court further reveals that the empties recovered from the spot wedded with the weapons recovered at the instance of the accused who have been sentenced to death and did not tally with the weapon recovered at the instance of Allah Bakhsh respondent. It was observed by this Court in the case of Muhammad Akram v. The State 1994 SCM R 277 that the merits of the case could be looked into at the time of hearing of application of suspension of sentence.

7. As far as filing of revision is concerned, this would be no ground for cancellation of bail. Reference may be made to the case of Sajjad Bashir v. The State PLD 1995 SC 576.

8. Now coming to the F.I.Rs, It has been noticed by us that all the above noted F.I.Rs, were recorded on the same date after about 23 months of the release of respondent on bail. All the F.I.Rs, have been registered under section 3/4 of Prohibition (Enforcement of Hadd) Order (4 of 1979) the alleged recovery of locally made liquor was effected on the same date within one hour of the registration of first F.I.R. Prima facie, it appears to be extra doings on the part of Sajjad Hussain, A.S.- I. And Muhammad Amin, A.S.-I., author and writer of F.I.Rs, respectively.

9. The impugned order is neither whimsical nor fanciful nor arbitrary. The reasons advanced by the learned Division Bench of Lahore High Court Lahore are borne out from the record of the case.

10. In the above noted circumstances, we are not inclined to interfere with the discretion exercised by the learned Division Bench in favour of Allah Bakhsh respondent. This appeal is dismissed.