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Petition for Special Leave to Appeal No. 61.‑P of 1978, decided on 28th September 1978.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 24th July 1978 in Criminal Miscellaneous No. 473 of 1978).

Criminal Procedure Code (V of 1898)‑

---S. 497(5)‑Cancellation of bail‑Accused petitioner's bail cancelled by High Court on consideration of his being charged in dying declaration, having absconded for many years, and ocular evidence existing to implicate him and further holding co‑accuser s acquittal being no valid reason for bail in circumstances of case‑Acquittal of co‑accused being no bar for trial Court to reappraise evidence led before it by prosecution, High Court, held, correctly cancelled bail on grounds. mentioned.‑

Munir Ahmad Khan, Advocate and Qasim Imam, Advocate‑on‑Record for Petitioner.

Tamoor M. Hayat, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No. 1.

M. Sardar Khan, Advocate‑General (N.‑W. F. P.) for Respondent No. 2.

Date of hearing : 28th September 1978.

.‑Deceased Imran charged his father Dolas Khan his three paternal uncles, Rais Khan, the petitioner herein, Misal Khan and Jamil for having fired at him and his maternal relations, Zarif Khan, Tai Hanif, Muhammad Hanif, Mukhtar and Samar Gul on 12th of October 1974, at Degarwela outside the mosque to avenge the grievance resulting from the refusal of Imran to reside with Dolas Khan who had also detained his wife. His statement was recorded in the hospital as he was critically injured and later succumbed to his injuries. Two other persons namely, Zarif Khan and Taj Hanif also expired as a result of gunshot injuries received by them. Misal Khan lodged the counter report at 8 p.m. the same day at Police Station, Saddar Kohat in which he accused Tai Hanif, Said Hanif and Malik Jumma Khan for having fired at him while he was returning from his field alongwith the petitioner. And as he sustained gunshot injuries he also died later.

The petitioner and Jamil Khan absconded and Dolas Khan was alone tried but acquitted by the trial Court on 8th of November 1975. The State appeal against his acquittal failed and was dismissed by the Peshawar High Court on 30th of January 1978, as it held that the conclusion of the trial Court in not accepting the ipse dixit of Hanif and the dying declaration of Imran was not assailable.

The petitioner surrendered after the dismissal of the acquittal appeal having remained four years in ascendance and applied for bail which was allowed by the Sessions Judge, Kohat, by order dated 11th of June 1978, principally on the ground that there was scope for further inquiry in view of the acquittal of Dolas Khan, the co‑accused.

The first respondent, thereupon, applied in the High Court for the, cancellation of his bail and by order dated 24th of July 1978, his bail was cancelled as it was of the opinion that the acquittal of the co‑accused was not a valid reason to allow him bail considering that he was charged in the dying declaration of. Imran; that he had absconded for many years; an lastly, that there was ocular evidence implicating him.

In seeking leave to appeal the same ground was urged as was taken before the learned Sessions Judge for allowing him bail but this ground cannot, in our opinion, be pressed into service as the acquittal of the co accused would not be a bar for the trial Court to re‑appraise the evidence led before it by the prosecution. On this view of the matter the High Court was correct in cancelling the bail on the grounds aforementioned.

Accordingly, we see no impropriety in the order and dismiss the petition.

Petition dismissed.

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