ABDUL HAYEE and 2 others vs THE STATE

ORDER

1. ' RAJA AFRASIAB KHAN, J.---On 6th of August 1994 at 11-15 a.m., a case under section 302/34, P.P.C.

2. Was registered on the statement of Haji Roshan with Police Station Drigh, District Larkana for the murder of Ahmad Ali against Abdul Hayee, Noor Muhammad, Abdul Rehman and Mazan. Ahmad Ali (deceased) was a primary school teacher. About 8/10 months ago, Haji Roshan give his daughter in marriage to Abdul Khalique son of Abdul Hayee in lieu of marriage of his son with the sister of his son-in-law. The complainant's daughter was expelled by Abdul Khalique from his house after giving her beating. She had, therefore, been living with the complainant. This being so, Abdul Khalique and his companions cherished grudge over this mishap. On the day of incident, Ahmad Ali and Qurban Ali were present and talking with their father, Haji Roshan. Abdul Hayee, Noor Ahmad and Abdul Rehman, all brothers inter se armed with shot-guns while Mazan holding hatchet came at the spot at 9-30 a.m. In execution of their common intention to commit murder. A Lalkara was raised whereupon Noor Ahmad, Abdul Hayee and Abdul Rehman fired from their guns and killed Ahmad Ali. The occurrence was witnessed by Imdad and others. On 6-7-1995, a learned Additional Sessions Judge, Kamber allowed bail to the petitioners with the following observations:-- "I have given careful consideration to the submissions of the learned counsel for applicants and perused the record. On perusal, it is on the record that the allegations against applicants are that they have fired at the deceased which is to me of general nature. Besides the ocular evidence is not supported by medical evidence, therefore, I am of the opinion that the case of applicants is of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. And thus the applicants are entitled to bail in the sum of Rs,1,00,000 (one lac) each and P.R. Bond in the like amount."

3. ' Qurban Ali, a witness challenged the validity of bail granting order by moving an application. It was accepted by a learned Judge of the Sindh High Court Circuit Bench, Larkana on 26th of November 1995. The order is as follows:-- "It is settled, that normally High Court does not interfere with the exercise of discretion in the matter of bail but when interference is inevitable, it is under a duty to do so in order to secure the ends of justice and to do complete and substantial justice to the parties. In a case of broad daylight incident, witnessed by three persons, names of the assailants being promptly mentioned in the F.I.R., and corroboration by medical evidence, the case was not at all fit for exercise of discretion of bail in a case of capital punishment. Even no case for further enquiry was made oqt. Ordinarily bail should not be allowed in murder cases especially when allegations in F.I.R. If left unrequited would render the applicant to sentence of death or life imprisonment. I am, therefore, of the view that while granting bail to the respondents, trial Court acted illegally and in violation of the settled principles for the grant of bail. It is in these circumstances that even the learned Additional Advocate-General did not support the impugned order and suggested for interference by this Court. Learned counsel for the respondents after obtaining six adjournments in this matter has not cared to appear for arguments and it is reported that he has left for Karachi with private business."

4. ' This petition seeking leave to appeal has been instituted by the petitioners.

5. ' Learned counsel has adopted the arguments which. He addressed before the Courts below.

6. According to him, there was conflict between the ocular account and the me 'decal evidence and as such, the petitioners were rightly admitted to bail by the trial Court.

7. After hearing the learned counsel and reading the record, we have not been persuaded to allow bail to the petitioners on the alleged ground of conflict in the ocular account with the medical evidence. After recording evidence, it is for the trial Court to give weight to the prosecution evidence in its own wisdom. Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case. The petitioners have been mentioned in the F.I.R. With clear roles in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. For admission of the petitioners to bail. They are the accused in a case of capital charge. The learned High Court had, therefore, rightly cancelled the bail which was allowed to the petitioners by the trial Court. It is, undoubtedly, within the discretion of the competent criminal Courts to grant bail to the accused even in appropriate murder cases. They are, however, under heavy duty to exercise their discretion fairly, justly and properly which, in any case, should be based on good grounds to meet the ends of justice. There is, therefore, no substance in this petition, which is dismissed by refusing leave to appeal.