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Criminal Petition for Special Leave to Appeal No. 16‑R in Criminal Appeal No. 14 of 1975, decided ore 29th April 1975.
(On appeal from the order of the Lahore High Court, Bahawalpur Circuit, Baghdadul Jadid, dated 17th March 1975, in Criminal Miscellaneous No. 2117‑B‑75/BWP).
‑‑‑ S. 498--‑Bail‑Petitioner not initially named in report made by Sub‑Inspector of Police as one of assailants‑Injured persons refusing to make statement before S. I.---‑Case, held, fit for grant of bail‑ Refusal of bail on ground of petitioner being described as principal trouble monger and incident having created alarm in area so much so that D. I. G. and Deputy Commissioner had to visit area, held, not based on legal evidence‑Bail confirmed.
M. Bilal, Advocate Supreme Court instructed by Maqbool Ahmad, Advocate‑on‑Record for Petitioner‑Appellant.
A. H. Jilani, Advocate Supreme Court for Advocate‑General Punjab for the State.
Date of hearing ; 29th April 1975.
.--‑On 12‑2‑1975 Dil Mohammad S. I. P. S. Bahawalpur Saddar, having received information that village Rajeywala has been scene Elf serious rioting between Ch. Ali Muhammad and his tenants, and feelings were still running high, he alongwith a contingent of constables and a head constable hurried to the village. There he found Ch. Ali Mohammad, his son Haider Ali Khalid and a servant Mohammad Sharif lying injured on the cots. Of them the latter two had been tied to the cots by their limbs and seven person, namely Hoot, Mohammad Latif, Abdul Hamid, Nazir Ahmad, Ghulam Nabi, Bashir Ahmad and Matlub Ahmad were keeping watch over them. The three injured complained of acute pain in different parts of then bodies, but refused to make any statement before the S. I. about the incident until they were first medically examined. This obliged the S. I. to draw up and sign the report on his own initiative and send it to the P. S. Saddar, Bahawalpur for the registration of the case. It is however important to point out that on this report, Mohammad. Rafiq the petitioner herein is not named as one of the assailants or even among those who were keeping watch over the three injured.
The three injured were medically examined on 13‑2‑1975. Ch. Ali Mohammad had 13 injuries, all of which were with blunt weapons. Haider Ali had 10 injuries, of which, one was by sharp‑edged weapon and rest by blunt weapons. Mohammad Sharif had 9 injuries, of which one was by sharp‑edged weapon and the rest by blunt weapons. All injuries were declared simple though some of the injuries were kept under observation. Ch. Ali Mohammad and Haider Ali were also X‑rayed for the discovery of any possible fracture, not apparent to visual examination. The result was negative.
After his medical examination, Ch. Ali Mohammad in his statement under section 161, Cr. P. C. also named the petitioner as one of the assailants and also Stated that the assailants had relieved him of his unlicensed revolver which the Government had given him as a reward for his meritorious services and of Rs. 650 and a wrist watch.
On the above allegations, apart from the offence of rioting, the offences alleged against the accused included, those under sections 307, 392, 395, and 342. The accused were refused bail by the learned Magistrate and the learned Sessions Judge. In the High Court, a learned Single Judge, however, admitted the petitioner herein, Hoot and Mohammad Hussain to interim bail. But when the case came for confirmation of bail before another learned Judge, he vide order dated 13‑7‑1957 declined to confirm bail. Against that order Mohammad Rafiq petitioner alone seeks leave to appeal.
It appears that the main reason which influenced the learned Judge to refuse bail to the petitioner herein and the other two co‑accused who were allowed interim bail was that the incident had created an alarm in the area, so much so, that the D. I. G. and the D. C. Visited the area. The petitioner though not named in the F.I.R. as among the assailants, was, on the basis of the statement of Ch. Ali Mohammad recorded under section 161, Cr. P. C. described as the principal trouble monger responsible for creating bad blood between Ch. Ali Mohammad and his tenants.
Mohammad Rafiq petitioner was allowed interim bail by this Court on 11‑4‑1975 and later, a notice was also issued to the Advocate‑General, Punjab to show cause why the bail be not confirmed.
After hearing petitioner's counsel and Mr. A. H. Jilani, Advocate on behalf of the State, in our opinion it is eminently a fit case for grant or bail to the petitioner herein. He was not initially named in the report, made by the S. I. as one of the assailants and if we may say with due respect the learned Judge in the High Court did not give due weight to the uncanny reluctance of the three injured persons to make statement before the S. I. and based his refusal to allow ball so as to furnish the basis for F. I. R to the petitioner on material which cannot possibly form part of legal evidence in the case.
Accordingly, we convert this petition into criminal 'appeal, accept the same and confirm the bail granted to the appellant herein on 11‑4‑1975.
Bail confirmed.
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