Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 42‑R of 1978, decided on 30th October.1978.

(On appeal from the order of the Lahore High Court, Lahore, dated 21‑6‑1978, passed in Criminal Misc. No. 2111‑B of 1978).

-------S.498‑Bail- First Information Report ‑ stating accused M son of accused N having brought gun on bidding' of N and having handed' it over to accused A who fired fatal shots at deceased‑Prima facie case against accused M and A, held, existed and lower Court, erred in releasing such accused on bail Lower. Court's order however sustainable on other grounds, viz accused A having also suffered, three injuries in fight indicating deceased being not entirely innocent and accused M being a soldier in Army possibility riot excluded of his having used gun himself instead of handing it over to accused, A if he were really present at time of occurrence.

----S. 498‑Bail‑Contention that High, Court having expressed itself on merits of case in‑impugned order, prosecution case bound to be Prejudiced--Held; Apprehension misplaced--Trial Judge would apply his mind to case purely on basis of evidence and not allow himself to be influenced by contents of impugned, order or even by observation in present order.

Sardar Muhammad Ishaq Advocate and Ch. Akhtar Ali Advocate-on-Record for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Sh. Riaz Ahmad, Assistant Advocate‑General (Punjab)for the State.

Date of hearing: 30th October; 1978.

. This leave, petition is directed against the order of the Lahore High Court, dated 21‑6-1978, and arises in the following circumstances:‑----

On18‑12‑1977, at 10‑a.m., an altercation is said, to have between Ghulam Muhammad deceased on the one hand and Noor Muhammad Mahmood Hussain and Abdul Ghafoor on the other over the digging of earth from a place adjoining their houses. As a result of the said altercation, in which the parties are said to have abused each 'other; accused Noor Muhammad asked his son Mahmood Hussain to fetch the gun from the house in order to teach a lesson to Ghulam Muhammad deceased. In compliance with the said order; Mahmood Hussain is said to have gone to his house and after a while returned with the gun and ammunition and handed the same to accused Abdul Ghafoor who fired three shots at Ghulam Muhammad deceased as 'a result of which he was hit and conse quently lost his life.

The F. I. R. of the occurrence was lodged, at the Police Station at 12‑00 p.m. on the same day in which the said three accused‑were named and so they were arrested. After unsuccessfully trying to secure bail for themselves from the Courts below, respondent Noor Muhammad and his son Mahmood Hussain approached the High Court and they succeeded to get bail, vide the impugned order. The view taken by the learned Judge in the High Court was that since the two respondents were admittedly empty handed, and were not accused to have caused any injury to the deceased, it was a fit case to grant them bail, as the question of their vicarious liability as co‑accused of Abdul Ghafoor, who is alleged to have fired the fatal shots at the deceased, and from whom the crime gun was recovered by the Investigating Officer, was to be decided on the basis of evidence by the learned trial Judge.

The learned counsel for the petitioner has taken exception to the said finding of the learned Judge in the High Court. He contended that in the F. I. R. of occurrence, it was clearly alleged that on the bidding of Noor Muhammad his son Mahmood Hussain fetched the gun and ammunition from his house and handed the same to accused Abdul Ghafoor who fire three shots at the deceased as a result of which he lost his life. He, therefore, contended that upon the said allegation there existed a prima facie case against the two respondents and so the learned Judge was in error to release them on bail.

There seems to be force in the contention of the learned counsel. If the matter had rested there, it would have been difficult to sustain the order of the High Court. But from the perusal of the record of the investigation placed before us by the learned Assistant Advocate‑General, we are satisfied that the order of the High Court can be sustained o other grounds. Quite apart from the fact that accused Abdul Ghafoor is said to have suffered three injuries in the fight thereby meaning that the deceased was not entirely innocent, the learned Assistant Advocate ‑General pointed out to us from the investigation file that Mahmood Hussain was a soldier in the Pakistan Army (having been allottee No. 2964892) and was posted in some regiment in the Lipa Valley of Azad Kashmir. From this it is obvious that had he been really present the possibility cannot be excluded that instead of handing over the gun to Abdul Ghafoor (his uncle) he could have used the gun himself. In point of fact this circumstance would be available to the respondents to be taken in the trial Court in their defence subject of course to its being proved to the satisfaction of the learned trial Judge. Prima facie, therefore, we are satisfied that although the impugned order of the High Court with respect is not wholly proper, but all the same it can be sustained on the said additional ground, especially when the three accused are closely related and belong to the same family.

The learned counsel for the petitioner, however, argued that by they impugned order the learned Judge in the High Court has express himself on the merits of the case which according to him is bound to prejudice the case of the prosecution. We are afraid that the apprehension of the learned counsel is misplaced. Needless to say that the learning trial Judge would apply his mind to the case purely on the basis of the evidence and would not allow himself to be influenced by what the High Court has said in the impugned order or for that matter what has been observed in the present order by this. Court.

This application, therefore, fails and is dismissed.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.