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Criminal Miscellaneous No. 772 of 1978, decided on 30th October 1978.

----S. 498-Bail-Prosecution witnesses charging accused petitioner before Police for murdering deceased but later on filing affidavits before Magistrate stating to have been forced to make such state ments-Witnesses having once charged accused, brushing aside of such statements may tantamount to evaluation of evidence by High Court and questions whether witnesses gave evidence against accused under force or accused persuaded them to resile from their statements, held, to be considered at trial and not on bail application in High Court Sufficient material existing on record making out prima facie case against accused, petitioner accused's bail application rejected-Penal Code

Muhammad Shafique Khan for Accused-Petitioner.

S. Akhtar Munir, Asstt. A.-G. for the State.

Date of hearing : 30th October 1978.

The accused/petitioner seeks bail in a case under section 302, P. P. C. His bail application before the learned Addl. Sessions Judge has proved infructuous.

The allegation against the accused/petitioner is that he alongwith one Matiullah brought the dead body of the deceased to his house in village Gujrat. The accused/petitioner told his brother Khan Murad that the deceased suffered his death accidentally with his own shot-gun. Khan Murad made a report at Police Station charging none. On the same day, however, the Police examined Gul Roshan and Rashid of Tora Banda where the deceased had met his death. Both these persons charged the accused/petitioner for murder ing the deceased. The learned counsel for the accused/petitioner contended that the said two persons filed affidavits before the Magistrate to the effect that they were forced to become witnesses against the accused/petitioner having killed the deceased, although they have not witnessed the occurrence. This contention had also been raised before the learned Sessions Judge and he repelled' it. The witnesses have once charged the accused/petitioner and therefore for the present the same cannot be brushed aside, for it would, as the learned Sessions Judge has pertinently remarked, tantamount to the evaluation of the evidence. The site-plan has been prepared at the instance of these two witnesses in which they have shown their presence on the spot at the time o occurrence. The question whether Gul Roshan and Rashid were forced to give evidence against the accused or the accused party persuaded them to resil from what they have stated against the accused cannot be looked into a this stage in the circumstances of this case. It will have to be considered at the trial, in case these two persons decline to give evidence against the accused. In my view, for the present the statements given by Gul Roshan and Rashid is a sufficient material to show that prima facie the accused/peti tioner is connected with the crime and hence not entitled to bail.

This application is, therefore, dismissed.

S. A. H. Application dismissed.

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