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Criminal Miscellaneous No. 1067-B of 1978, decided on 5th July, 1978.

- S. 497(5)-Cancellation of bail pressed on grounds ; (i) Sessions Judge accepting application for grant of bail by means of a lacunic order;(ii) tangible evidence connecting respondents with crime available; (iii) evidentiary value of supplementary statement of petitioner and that of remaining witnesses not to be assessed at bail stage so as not to tantamount to prejudging case---Omission of :names of accused and allegations of conspiracy in F. I. R, without any explanation justifying counter view of case against respondent requiring further inquiry ---Sessions Judge, held, correctly exercised his discretion in granting bail to respondents-Cancellation of bail declined, in circumstances.

Pir S. A. Rashid for Petitioner.

Ch. Riasat Ali for Respondents.

Nemo for the State.

Aggrieved by order of learned Sessions Judge releasing Abdul Sattar, Muhammad Ramzan and Abdul Rehman (respondents 1 to 3) on bail in case of murder, Abdullah complaint in the case to be mentioned as petitioner here inafter, has applied under subsection (5) of section 497, Cr. P. C. for cancella tion of the bail. Case in respect of murder of Noor Muhammad deceased a real brother of the petitioner was registered with the police on the report by the petitioner. The report recites that an unidentified person-who was seen by the petitioner and other family members in the light of lantern had assaulted the deceased during the night. Same day, Abdullah petitioner made a supplementary statement before the police alleging therein that Bashir had killed the deceased pursuant .to a conspiracy with respondents Nos. 1 to 3. Muhammad Yusuf and his son Abdul Ghafoor appeared before the police after two days of registration of the case and supported the version of the petitioner that the respondents and Bashir had in their physical presence conspired to kill the deceased. The latter was allegedly carrying on with Mst. Rani a real sister of Bashir and he had ale adulterous relations with Mst. Nooran a sister of Abdul Sattar respondent and wife of Ramzan respondent No. 2. Abdul Rehman respondent is a real brother of Ramzan. Sher Khan and Bahadur Khan made statements before the police after more than a month of the incident that Bashir, the principal accused in the case and the respondents had confessed the crime before them. It will be shown that charge against the respondents rests on supplementary statement of the petitioner and statements of Muhammad Yusuf, Abdul Ghafoor, Sher Khan and Bahadur Khan. The respondents were admitted to bail by learned Sessions Judge holding the view that the case against them was that of further enquiry.

2. Lengthy arguments were addressed on the side of the petitioner. Learned counsel for the petitioner contended at the outset that learned Sessions Judge bad accepted the application for grant of bail to the respon dents by means of a lacunic order. He was obliged in law to record a concrete opinion if the circumstances of the case could not be equated with "reasonable ground for believing" that the respondents were guilty of the charge. There is tangible evidence to connect the respondents with the crime. It could not, therefore, be said the charge against the respondents was groundless. Evidential value of supplementary statement of Abdullah petitioner and that of remaining witnesses in the case cannot be assessed at this stage as that will be tantamount to prejudging the case.

On a careful consideration I am led to the view that learned Sessions Judge had correctly exercised his discretion in releasing the respondent on bail and the impugned order was not liable to interference. Supplementary statement of the petitioner gives an impression that he was already cognizant of conspiracy among the respondents and Bashir for murder of the deceased. The fact that names of the accused/respondents do not figure in the first information report per se weighs heavily against the argument on the side of the petitioner and justifies the counter view that case against the respondents was that of further inquiry. At present, there is no explanation why names of the respondents and the allegation of conspiracy were omitted in the first information report. The facts of the case should not be stretched unduly in favour of the prosecution for the reason that capital charge had, been levelled against the accused. The question if there existed reasonable grounds for believing that the accused was guilty of the charge should decided judiciously.

3. Application rejected.

Application rejected.

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