MUHAMMAD HUSSAIN vs MUHAMMAD SIDDIQUE And Another

ORDER

ANWARUL HAQ, J.--The petitioner is aggrieved by an order made by a learned Judge of the Lahore High Court on the 27th of October, 1976 allowing bail to the respondent Muhammad Siddiq in a case pending against him and three others under sections 302, 324 and 326, P.P.C. Read with section 34 thereof for causing the death of Noor Hussain and causing injuries to some of the members of one Noor Hussain's party during the course of an incident which took place on 12-2- 1976.

2. The main ground which has prevailed with the learned Judge is that the dying statement made by Noor Hussain, which now forms the first information report against the respondent and his co- accused, did not give any explanation of the injuries sustained by the present petitioner and his companions, especially when one of the injuries on the petitioner had caused a fracture of the skull bone. The learned Judge has expressed the view that the presence of these serious injuries on the person of the respondent lends support to the plea of self-defence raised by him, and as the prosecution has not given any explanation of these injuries, the case is one requiring further inquiry in terms of subsection (2) of section 497, Cr.P. C.

3. Kh. A. Wahid, appearing for the present petitioner, contends that in number of precedent cases this Court has clearly enunciated the rule that at the time of considering the questions of bail effect cannot be given to a plea of alibi or self-defence raised by an accused person, as these are questions which require to be resolved by recording evidence, an exercise which must be undertaken in the first instance by the trial Court, and which function should not be pre-empted by the High Court while disposing of a bail application. Mr. Wahid submits that the learned Judge in the High Court was in error in examining the plea of self-defence at some length and recording a positive opinion in that behalf which has resulted not only in the enlargement of the respondent on bail although he is involved in a case punishable with death or transportation for life, but has also prejudiced the case for the prosecution.

4. Mr. Aftah Farrukh, the learned counsel appearing for the respondent, contends on the other hand that in this case the presence of injuries on the person of the respondent was clearly proved by his medical examination carried out at the instance of the Investigating Officer, but the complainant party had rendered no explanation at all in respect of those injuries, and, therefore, it was clearly a case which called for further inquiry in terms of subsection (2) of section 497 of the Code, and the learned Judge in the High Court rightly allowed bail on that account. He submits that the cases sought to be relied upon by the learned counsel for the petitioner are all clearly distinguishable on facts.

5. After hearing the learned counsel appearing for the parties, we are of the view that no justification is made out for interference in the matter. It is established on the record available to us that the respondent Muhammad Siddiq had indeed suffered several injuries including one involving the fracture of the skull bone, but these injuries had not ail all been explained by the complainant party. In these circumstances the plea of self-defence raised by the respondent was clearly one needing further inquiry, and in the meantime the respondent was entitled to be enlarged on bail. As a result, this petition fails and is hereby dismissed.