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Petition for Special Leave to Appeal No. K‑5) of 1974, decided on 5th September 1974.
(On appeal from the judgment and order of the High Court of Sind & Baluchistan, Karachi, dated the 5th July 1974, in Criminal Bail Application No. 398 of 1974).
‑‑ S. 497‑Bail‑Prosecution case supported by two eye‑witnesses and four more witnesses yet to be examined ‑All accused to be found guilty of offence under S. 302 read with S. 149 in case of acceptance of version of such witnesses‑Not possible in circumstances to believe that no circumstances existed showing all accused to be guilty of an offence punishable with death.
Muhammad Hayat Junejo, Senior Advocate Supreme Court instructed by Yusuf Rafi, Advocate‑on‑Record for Petitioner.
Khalid M. Ishague, Advocate Supreme Court, instructed by Nizam Ahmad, Advocate‑on‑Record for Respondents.
Date of hearing 5th September 1974.
‑The five respondents are charged for the offence under section 302 read with section 149, P. P. C. The High Court has granted them bail. Counsel for the petitioner points out‑
(1) that the two incidents were distinct from each other in time.
Indeed, the first incident constituted the motive for the assault on the deceased end the injured P. W . 'The learned Chief Justice has however, juxtaposed both the incidents into one transaction and treated the first incident gas a circumstance in favour of the accused ; and
(ii) that the accused were already armed with battles and it is not correct that they had picked up the bottles from the scene of crime as observed in the order granting bail.
There is substance in both the contentions raised in support of the petition.
The prosecution case is supported by two eye‑witnesses who have been examined by the Inquiry Magistrate. There are four more eye‑witnesses whose statements are yet to be recorded. If their version is accepted all the accused will be found guilty of the offence of murder read with section 149, P. P. C. In this view we are not inclined to agree with the learned Chief Justice that there are no reasons to believe that the five respondents are guilty of the offence punishable with death..
However, instead of granting leave to appeal and recalling the order of bail passed by the High Court it will be sufficient to observe that the inquiry Magistrate and the trial Judge will not be influenced by what has i been said in the order granting bail to the accused. Further if they are committed to stand trial before the Court of Sessions the boil granted to them by the High Court would no doubt be cancelled.
Order accordingly.
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