ALLAH BAKHSH vs NAZAR HUSSAIN SHAH AND Another

ORDER

1. G. SAFDER SHAH, J.-This leave petition is directed against the order of a learned Single Judge of the Lahore High Court, dated 21-6-1978, and arises under the following circumstances :- On 17-9-1976, an F. I. R. Was lodged against .The respondent, his co-accused Bagh Hussain Shah and Mazhar Hussain Shah under sec--petition 302/34, P. P. C. The case of the complainant in the F.

2. I. R, was that the respondent and his co-accused had attacked late Haq Nawaz and put him to death. The accusation against the respondent was that he and his co-accused Mazhar Hussain Shah both were armed with pistols whereas Bagh Hussain Shah was empty-handed but he had raised lalkara that the deceased should be taught a lesson. The motive alleged for the murder was the previous enmity between the parties on account of the murder of Latif Shah, the brother of accused Bagh Hussain Shah sometime before the present occurrence by the complainant party.

3. Upon these facts the learned Additional Sessions Judge allowed bail to Bagh Hussain Shah as the only accusation against him was the usual raising of lalkara. Thereafter the respondent herein and Mazhar Hussain Shah both applied for bail and in support of their case brought on the record the affidavits of two eye-witnesses, named in the F. I. R. Exculpating them from the commission of the crime. The learned Additional Sessions Judge, however, refused bail to Mazhar Hussain Shah on the ground that the statement of the first informant found corroboration from the empties allegedly fired by him from his pistol but he granted bail to the respondent herein on the basis of the affidavits of the alleged eye-witnesses holding that even if the said affidavits .Were ignored the only material against him would be the uncorroborated statement of the first informant as also that the medical report did not support the case of the prosecution that the deceased bad been shot thrice. Being aggrieved of the said order, the complainant went to the High Court seeking cancellation of the bail granted to the respondent but his application was dismissed by the impugned order.

4. We have heard Chaudhry Abdul Rehman, the learned counsel for the petitioner. The two grounds urged by him in support of this petition are:

(1) that in the High Court reliance on the affidavits of the alleged eye--witnesses, exculpating the respondent herein from the commission of the crime were wrongly relied upon; and

(2) that the medical evidence did support the case of the prosecution that the deceased had been done to death in consequence of the three shots fired at him.

5. We are afraid there is no force in either of these contentions. The two affidavits filed by the alleged eye-witnesses exculpating the respondent herein from the commission of the crime were there on the record of the case forming the necessary material which had to be considered by the learned Judge in reaching the conclusion whether the respondent could be said to have been connected with the offence. This is indeed what the learned Judge in the High Court has done to which no exception can betaken. We therefore, respectfully agree with his conclusion that this was a case for further inquiry under section 497(2), Cr. P. C. And consequently it was not a case in which bail could be refused to the respondent.

6. By going through the medical evidence on record, prima facie, we do not agree with the contention of the learned counsel that the same corroborated the evidence of the first respondent. In this view the order passed by the learned Judge in the High Court would seem to be proper, specially when the learned counsel has failed to show that in the exercise of his discretion, the learned Judge had conducted himself otherwise, than in accordance with the well settled principles relating to the grant or refusal of bail to an accused in a case under section 302, P. P.C.

7. This petition, therefore, fails and is dismissed.