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Criminal Appeal No. 137 of 1969, decided on 16th January 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 12th December 1966, in Criminal Miscellaneous No. 3269 of 1966).
S. 497‑Bail‑Investi gating Officer of police finding accused innocent‑Such finding although no legal evidence, yet being adverse to prosecution puts one on inquiry as to veracity of prosecution case Vicarious liability of accused in regard to commonness of his intention with us co‑accused for committing murder still requiring determination--Accused allowed to remain enlarged on bail.
Nazir Ahmad Khan, Senior Advocate Supreme Court instructed by Muhammad Nazir Khan, Advocate‑on‑Record for Appellant.
Muhammad Asghar, Advocate Supreme Court instructed by Ijaz Ali, Advocate‑
on‑Record for the State.
Dr. Tasadduque Hussain, Senior Advocate Supreme Court (absent). Wajid Hussain, Advocate‑on‑Record (absent) for Respondent No. 2.
Date of hearing : 16th January 1970.
‑Rehmat Ullah, the appellant herein, and his co‑accused Karam Ilahi are being prosecuted for causing the death of one Mst. Fatima. According to the prosecution ease, the two accused armed with guns ascended the roof of their house from where Karam Ilahi fired a shot at Bakhsha who was sitting in his ihata along with other people. The shot missed Bakhsha but hit the deceased, Mst. Fatima, on her shoulder and caused her death.
Rehmat Ullah moved the learned Sessions Judge, Sargodha, for his bail which was allowed on the ground, as appears from the order, that his vicarious liability for causing the death of Mst. Fatima was not clear.
Thereafter, an application under section 497(5), Cr. P. C. was moved in the High Court for cancellation of Rehmat Ullah's bail which has been accepted by a learned Single Judge by his order dated the 12th of December 1966. It is stated in this order that although three successive investigating officers have found Rehmat Ullah to be innocent, yet as their opinion is not legal evidence and the charge against Rehmat Ullah is one of murder, bail can not be allowed to him except in exceptional and special circum stances.
Ad interim bail was allowed to the appellant by this Court at the leave stage which was granted to consider whether the facts of the case justified cancellation of the appellant's bail by the learned Single Judge in. the High Court. .
This seems to us to be a case in which the guilt of the appellant certainly requires further investigation and inquiry to entitle him to bail under section 497 ‑.(3) of the Criminal Pro cedure Code. The opinions of the investigating officers certainly do not constitute legal evidence, but being adverse to the prosecu tion, they put one on an inquiry as to the veracity of the prose cution case. The question of the vicarious liability of the appellant in regard to the commonness of his intention with his co‑accused for firing at Bakhsha and its further extension to the result that followed, namely, the death of Mst. Fatima, will have to be determined at the trial to see if his guilt under section 301 /34, P. P. C. is established as alleged by the prosecution.
In any event, it cannot be said, in the circumstances of the present case, that the learned Sessions Judge had acted arbitrarily in allowing bail to the appellant and as such the reversal of his order by the learned Single Judge appears to us to be unjustified. This appeal has consequently to be accepted. The appellant shall continue to remain on bail as already ordered by this Court.
Appeal allowed.
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