FALAK SHER AND Another vs The STATE

ORDER

1. KARAM ELAHEE CHAUHAN, J.-The petitioners are involved in a case under section 302/34, P. P. C. For the murder of Mst. Jannat alleged to have been committed by them in the house of one Mst.

2. Daulat in Chak No. 194. The accused and the deceased belonged to Chak No. 195. The deceased was married to Haq Nawaz of village Bhawana but as their relations got strained, she was during the relevant days living with her father in Chak No. 195. According to the prosecution the deceased and her father Noor Muhammad were on 30-5-1978 returning from village Bhawana, after making certain household purchases and when they came to Village Chak No. 194 Mst. Jannat went to the house of Mst. Daulat to take water. She was suddenly followed by the accused petitioners Falak Sher and Nasar who were armed with sota and gun respectively. The accused attacked Mst.

3. Jannat with their respective weapons who died on the spot. The report of this occurrence was lodged by Noor Muhammad (who also is now dead) at Police Station, Bahawana as per F. I. R. No. 70 dated 30-5-1978. The motive alleged in the F. I. R. Was that the accused suspected that Mst.

4. Jannat had illicit relations with Nazoo of Chak No. 194 whom she used to meet in the house of Mst.

5. Daulat. It was alleged that as the petitioners were relations of Mst. Jannat Bibi therefore, they killed her for that reason. The eye-witnesses mentioned in the F. I. R. Were (i) Malak, (ii) Lal and (iii) Mst.

6. Daulat. The petitioners applied for bail which was granted to them by the learned Sessions Judge, on 21-6-1978 on the ground that in view of the over all facts and the circumstances, the case was such which needed further inquiry and fell under subsection (2) of section 497 of the Cr. P. C. Haq Nawaz filed a Criminal Revision No. 505 of 1978 in the High Court for cancellation of bail of the accused petitioners. A learned Single Judge of the Lahore High Court accepted that petition and by means of his order dated 29-8-1978, cancelled the, petitioners' bail. The petitioners have come up in a petition for special leave to appeal to this Court.

2. Learned counsel for the petitioners has argued that in the very nature of the facts and the circumstances to be presently pointed out, it is a case which would need further inquiry and as such the privilege of bail which had been extended to the petitioners on that ground under section 497 (2) of the Cr. P. C. Should not have been cancelled by the High Court at this stage particularly in the exercise of its revisional jurisdic--petition as the order of the learned Sessions Judge was neither arbitrary nor capricious or perverse in any manner and rather was well supported from the record. He submitted that the deceased and the petitioners belonged to Chak No. 195. The occurrence has taken place in Chak No. 194 in tote house of Mst. Daulat. The prosecution prima facie has not explained how the deceased and the petitioners happened to be in' that Chak namely Chair No. 194. One eye-witness Malak belonged to Chak No. 196 and the other alleged eye- witness Lal belonged to Chak No. 224. It is not explained as to how they all happened o be at the place of occurrence on the fateful day and time. Coupled with this is the fact that both these alleged eye--witnesses as well as Mst. Daulat have made their statements under sec--petition 164, Cr. P. C. Deposing that they had not seen the occurrence and that insertion of their names in the F. I.

7. R. Was an arbitrary affair. To the same strain is an affidavit of Muhammad Saleem Butt, Advocate, Jhang Saddar, who has deposed that the aforesaid witnesses so stated before him also. Noor Muhammad first informant is dead and the F. I. R. In the circumstances remains an uncorroborated document specially when its maker will not be available for cross-examination. There is no recovery of any articles or goods from the spot to show that the deceased had returned from Bhawana, after making purchase of any household articles, These contention have merit and it appears that the same were not given due consideration by the learned Single Judge of the High Court who rather observed that the F. I. R. "will be a good evidence" though it is well .Known that it is never a substantive evidence and more so when its maker is dead and will not -be available for cross-examination in the case. Since the' prosecution version in its very nature leaves much to be enquired into and' the case being of a further inquiry, the order of the High Court which e ignored this fundamental characteristic of the case cannot be maintained. It is to be pointed out that section 497(2) of the Cr. P. C. Itself authorises grant of bail in cases of further inquiries. The High Court, it appears, did not up set the finding of the learned Sessions Judge that it was a case of further inquiry, but making appraisal of the merits in its own way, cancelled the bail without expressing any opinion on the subject of further inquiry. This was illegal because in our view, a High Court would not be justified to interfere in discretionary orders of Courts below where the said Courts feel and from perusal of record specifically hold that a case is such which 1--needs further inquiry, and pass the relevant order on that ground and basis. Unless the order impugned is perverse, arbitrary, fanciful or is not born out from the record. As this was not a case of that type, interference by the High Court in its revisional jurisdiction with the order of the learned Sessions Judge was not warranted. The result is that we convert this petition into an appeal and accepting the same set aside the order of the High Court and restore that of the learned Sessions Judge. The petitioners shall remain on bail in terms of that order.