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Criminal Miscellaneous No. 40/B of 1974, decided on 22nd May 1974,

‑‑‑ S. 497-‑Bail‑---[Murder case]. .‑‑‑ Bye‑witnesses of ' occurrence exonerating accused from commission of offence before committing Magistrate‑‑‑Bail granted, in circumstances.‑[Bail].

Rafiq Bajwa for Petitioner.

Sh. Islamul Haq for the state.

Complainant in person.

The learned counsel has placed on record tile certified copies of the statements of the eye‑witnesses, namely. Umar Daraz (P. W. 12). Muhammad Akram (P. W. 13). Muhammad Asif (P. W. i4) and Syed Manzoor Hussain There were in all five eye‑witnesses. The fifth, namely, Muhammad Iqbal was given up. A perusal of the statements of these witnesses shows 4 that they have not supported the prosecution story. 'They stated before the committing Magistrate that the man arraigned in the Court was not the culprit. Umar Daraz had lodged the F. I. R. but axe has completely gone back on the story narrated in the F. I. R., and had said that the F. I. R. was not read out to him and that he signed the same after the Sub‑Inspector had recorded it, according to his own lights. Muhammad Akram (P. W. 13) apart from being an eye‑witness is also witless of the recovery of the chhuri P. 1 from the petitioner. He stated that the accused present in Court was not the culprit and be and some others snatched the chhurri from the real culprit. He could not say in Court whether the chhurri P. 1 was the same which he xtad snatched from the accused. The witness stated in reply to the cross‑examination of the Prosecutor that the members of the Public were saying that Abdus Sattar bad been done to death by his wife's brother, When cross‑examined by the counsel for the defence, he said that his wife had two/three brothers. Muhammad Asif and Mansoor Hussain also made statements disowning the knowledge as to who had attacked the deceased,

2. The learned counsel for the petitioner submits that in view of the fact that the eye‑witnesses did not support the prosecution story and have denied that the petitioner was the perpetrator of the crime, there is no evidence on record to show that he is guilty of an offence punishable with death or imprisonment for life. It is also pointed out that Muhammad Ikram, who is said to have produced the chhuri before the police, did not support the factum of recovery from the petitioner.

3. Mr. Islamul Haq, the learned counsel for the State submits that the petitioner had approached this Court initially for bail on ground of delay and that the Magistrate has the jurisdiction to discharge the petitioner under subsection (2) of section 209, Cr. P. C., if he finds that the charge against him is groundless. It is further submitted that the commitment order is to ire passed subject to the provisions of bail and that the Magistrate will be free to enlarge the petitioner on bail under section 210, Cr. P. C.

4. There is no doubt that the petitioner approved this Court for bail oat ground of delay but there is no legal bar against him to urge any ground available to him in his favour. The eye‑witnesses in the case have not alleged in the inculpation of the petitioner in the commission of the offence. This Court is competent to consider any other ground urged in favour of the petitioner. There is no provision of law which says that when a man can show to a higher Court that he is entitled to bail, the matter may be left to the Magistrate for further consideration.

5. I find force in the argument of the learned counsel for the petitioner that the evidence does not indicate that the petitioner is guilty of an offence Punishable with death or imprisonment for life. I, therefore, direct that the petitioner shall be released on bail in the sum of Rs. 20,000 (Rupees twenty thousands) with two sureties in the sutra of Rs. 10,000 each to the satisfaction Inquiry Magistrate.

Petition allowed.

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