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Criminal Miscellaneous No. 1418 of 1968, decided on 25th November 1968.

----S. 497 (3)-Bail, cancellation of Allegation against accused of having throttled deceased supported by eye-witnesses and corroborated by medical evidence-Bail cancelled-Penal Code (XLY of 1860), S. 302/34.

Muhammad Iqbal and others v. The State 1968 P Cr, L J 1212 not applicable.

-----S. 497 (S)-Bail, cancellation of-Accused alleged to have held victim by legs and arms while another person throttled him to death-Question whether S. 34, P. P. C. did or did not apply still to be gone into by trial judge-Cancellation of bail refused-penal Code (XLV of 1860), S.302/34.

Adrees Nusrat for Petitioner.

Yusuf Ali Khan for Accused-Respondents.

Syed Asad Hussain Zaidi for the State.

This is an application for cancellation of bail granted to the respondents by the learned Sessions Judge, Sialkot, on the 18th of January 1968 in a case under section 302/34, P. P. C. The applica tion for cancellation of bail of the respondents was moved by Lal Din father of the deceased person and was supported by the counsel who appeared on behalf of the State. The learned Sessions Judge while granting bail to the respondents observed that initially they were bailed out by the Ilaqa Magistrate but subsequently when the challan under section 302/34, P. P. C. was submitted against them the Magistrate proceeded to cancel bail. The learned Judge further observed that Muhammad Din who lodged the report did not claim to be an eye-witness to the occurrence in which Bashir was put to death by the respondents. Counsel for Lal Din petitioner submitted that as the respondents have been committed to Court of Session for trial on a charge under section 302/34, P. P. C. they are not entitled to the concession of bail. It is also submitted that the ground which prevailed with the learned Sessions Judge that Muhammad Din was not an eye-witness to the occurrence, was untenable as it is not necessary for the first maker of the first information report to be an eye-witness to the occurrence.

2. Mr. Yusuf Ali Khan who appeared on behalf of the res pondents maintained that the District Inspector of Police, who reinvestigated the case, came to the conclusion that the respon dents were innocent. He referred in this connection to the report under section 173, Cr. P. C. by the police. Counsel for the respondents also referred to a Single Bench judgment in Re: Muhammad Iqbal and others v. The State (1968 P Cr. L J 1212).

3. I have perused the record and have also taken into consideration the police report. The part assigned in the first information report to Muhammad Malik is not only corroborated by the eye-witnesses but also borne out from the medical evidence. The allegation against Khushi Muhammad, Murad and Chiragh was that they held the victim by the legs and the arms. I think the respondents other than Muhammad Malik should continue on bail as the question whether section 34, P.P.C. applied or not is still to be gone into by the learned trial Judge. The applica tion for cancellation of bail in so far as Khushi Muhammad, Murad and Chiragh is concerned, is dismissed. The case against Muhammad Malik, however, stands on a different footing. The allegation that he throttled the deceased in ex facie born out from the medical evidence. The reported case referred to above is not applicable to the case against Muhammad Malik. The bail granted to him by Mr. M. A. Sufi, Sessions Judge, Sialkot on the 18th of January 1968, is ordered to bi cancelled. The District Magistrate, Sialkot, shall now take steps to have Muhammad Malik arrested and committed to jail to be lodged there as an under-trial prisoner. The application is partially accepted.

Petition partly accepted.

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