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Petitions for Special Leave to Appeal Nos. K/3 and K/4 of 1979, decided on, 13th March 1979.

(Appeal against judgment and order dated 31‑12‑78 of Sind High Court in Criminal Bail Applications, 1213/78 and 1221/78).

--S. 497(2), (5)‑Bail‑Cancellation of bail‑High Court applying mind to all material placed before it on behalf of prosecution and allowing bail to some accused and disallowing to another‑Correctness of facts forming basis of High Court's finding not disputed‑Contention that in view of additional statements made by two witnesses active role assigned to respondents hence their bails liable to be cancelled Held: Without force‑Reliance having not been made on statements of such two witnesses in High Court and also it being not permissible for Supreme Court to give any opinion in such regard due to its being likely to prejudice fair trial of case, contention without any force.

Usman Ghani Rashid, Advocate‑General (Sind) and M.I. Memon, Advocate- on‑Record (absent) for petitioner.

S. M. Abbas for Respondents.

Date of hearing: 13th March, 1979.

‑In consequence of an incident of firing which took place at 9‑30 p.m. on 17‑2‑77 within the area of Police Station Tando Jam, District Hyderabad, one Faiz Muhammad was murdered and two occupants of the car namely Khuda Dino and Allah Bux received minor injuries. The background in which the said incident took place was that in connection with the investigation of a Case (No. 11/77) registered against Mir Rasul Bux Talpur, Mir Ali Ahmad Talpur, Mir Rafiq Ahmad alias Papoo and Mir Faiz Muhammad Talpur and three other persons at Police Station Noosri, a police party, headed by S. H. O. Ghulam Rasool was detailed to arrest the said accused persons. The prosecution case in that behalf is that the police party in question, armed with service rifles and revolvers, proceeded in a Suzuki Wagon No. KAZ‑559 driven by one Faqir Hussain. When the police party reached near the Government School, Chukhi from where a track branched off to the village of the deceased, they saw a car approaching from the opposite direction; on seeing the said car, the police party alighted from the said Suzuki Wagon, stopped the car and saw, in the torch light, that Mir Rafiq Ahmad alias Papoo was sitting on the wheels of the car armed with a step‑gun, Mir Faiz Muhammad. sitting beside him, Mir Allah Warayo, Mir Allah Bux and another person sitting on the rear seat of the car, all armed with revolvers; on having thus identified them, Ghulairi Rasul, S. H. O. told them ‑that except‑ for the unidentified person, ‑ they were all under arrest, and, consequently, asked them to come out of the car and surrender themselves. The record would show that instead of heeding the said warning given to them by Ghulam Rasul, the deceased as well as the other occupants of the car, all started firing at the police party and in the exercise of the right of self‑defence the members of the police party fired back at them, in conse quence of which Faiz Muhammad was hit in the region of his neck and lost his life. None from the police party, however, suffered any injury but it is the case of the prosecution that as a result of the firing of the accused the door and number plate of the Suzuki Wagon got hit and damaged, but the accused managed, to accelerate away from the scene of occurrence.

In respect of the said incident Ghulam Rasool, S. H. O. filed against the said accused an F. I. R. at the Tando Jam Police Station under sec tions 307/353/148/149/224 and 225, P. P. C. at 11‑45 p.m. on the day of occurrence. At 1‑30 a.m., on 18‑2‑77, Mir, Rafique Ahmad alias Papoo also filed a counter F. I. R. under section 302/307/148/149, P. P. C. against the members of the said police, party .at the Market Police Station which was subsequently transferred to the police station of Tando Jam and registered there at 7‑30 p.m. on the said date. Now the admitted position is that the investigation in respect of both these F. I. Rs. was conducted by S. H. O. Naseer Khan of the Tando Jam Police Station who came to the conclusion that the F. I. R. lodged by S. H. O. Ghulam Rasool was credible whereas the one filed by Mir Rafiq Ahmad was untrue, therefore, no action was taken in respect of the said F. I. R. but in pursuance of the F. I. R. lodged by Ghulam Rasool, Mir Rafiq Ahmad and others were proceeded against but they managed to secure for them selves bail before arrest from a local Court. It seems that Mir Rafiq Ahmad and others were dissatisfied with the conduct of S. H. O. Naseer Khan with the result that the local press spot‑lighted their grievance in that behalf as also that applications were filed before the higher authorities: However, none of these efforts seem to have fructified but upon the change of the Government on 5‑7‑77 the A. 1. G. (Sind) ordered fresh investigation in respect of the F. I. R. lodged by Mir Rafiq Ahmad. In this behalf Abdul Majeed, Inspector of the Crimes Branch, Hyderabad was appointed as the Investigating Officer who, vide his report dated 26‑11‑77‑ agreed with the previous view taken by Naseer Khan, S. H. O. of Tando Jam Police Station to the effect that no case could be made out against Ghulam Rasool, S. H. O. and others, and, consequently, no action was required to be taken in the matter.

The learned counsel for the parties have informed us that even this investigation did not satisfy Mir Rafiq Ahmad and others and so a third investigation was conducted in that behalf but again the Investigating Officer came to the same conclusion. Still being dissatisfied Mir Rafiq Ahmad and others seem to have continued making efforts with the higher authorities and finally succeeded, as on the intervention of the Minister of Interior, Government of Pakistan, the fourth investigation in the case was ordered, in pursuance whereof, the F. I. A. took up the investigation in hand and arrested the accused in connection with the F. I. R. lodged against them by Mir Rafiq Ahmad.

After their arrest the said accused filed applications in the Court of Ist Additional Sessions Judge, Hyderabad, for bail, but their applications were rejected by a consolidated order dated 8‑11‑78. Thereafter, three separate applications were filed by them in the High Court for bail and the same were disposed of by a learned Judge vide his order dated 31‑12‑78 granting bail to Mir Allah Bux, Mir Chutto Khan, Mir Abdullah and Mir Bachal Khan but refusing bail to A. S., 1. Amanullah as his presence during the occurrence was not disputed and further that he had taken the plea of private defence. It is in this background that the State has filed these two petitions praying leave to appeal against the impugned order of the High Court.

We have heard Mr. Usman Ghani Rashid, the learned Advocate General (Sind) and Mr. S. M. Abbas, who has filed caveats on behalf of the respondents. The learned Advocate‑General contended that by granting bail to the respondents in a case in which they are accused under sec tion 302/307/ 148/149, P. P. C. the learned Judge in the High Court has not only exceeded his jurisdiction but disregarded the well‑settled legal principle relating to the refusal or grant of bail in a murder case. He argued that in consequence of the indiscriminate firing made on the car of late Faiz Muhammad by the police raiding party, of which the respondents were members, Faiz Muhammad was murdered but due to the partisan attitude of the various Investigating Officers, no action was taken in the matter until the change of Government on 5‑7‑77 when in pursuance of the fourth investigation conducted by the F. I. A. the respondents were found to be connected with the crime and arrested. In these circumstances, the order passed by the learned Judge in the High Court is without jurisdiction and has to be set aside. There is no force in this contention. The learned Judge in the High Court seems to have applied his mind to all the material placed before him on behalf of the prosecution and recorded the conclusion that:‑

"So far the question of bail is concerned, the case of applicants Mir Allah Bux, Mir Chutto Khan, Mir Bachal Khan and Mir Abdullah stands on a different footing from that of police officials who have filed a counter case, which report was lodged earlier in time and in which a definite plea of private defence is taken. None of the applicants mentioned by me above are named in that F. I. R. There is no circumstantial evidence against them. No recoveries of incriminating articles have been made from them. Their complicit in the case would be determined by the ocular evidence which is yet to be adduced. In view of this state, of evidence against them I admit them to bail in the sum of Rs. 20,000 with one surety and P. R. each in like amount to the satisfaction of the trial Court. Bail plea of applicant Amanullah A. S. I. is rejected for the reason that he does not dispute his presence on the spot and has taken plea of private defence which would be determined by the trial Court."

The learned ‑Advocate‑General has not disputed the correctness of these facts on the basis of which the learned Judge recorded the said finding. He, however, argued that in the additional statements of Mir Rafiq Ahmad recorded during the fourth investigation of the case as well as of one of Mir Gulzar Ali, active role has been assigned to the respondents and on that account their bails are liable to be cancelled. This contention also has no force in it. In the first place, reliance on the statements of the said two witnesses was not made in the High Court and in the second place it would be impermissible for this Court to give any opinion in that behalf as it is bound to prejudice the fair trial of the case. This much may be said, however, that if the said two statements had been made at the earliest stage of the proceeding, the learned Advocate General may have been justified in his contention but for the purpose of bail these two statements cannot be taken into consideration at this stage although the learned trial Judge would be at liberty to consider them and also rely on them as true if the prosecution would be able to persuade him in that behalf.

We are, therefore, satisfied that the order passed by the learned Judge in the High Court was passed in the proper exercise of his discretion and calls for no interference by this Court. These two petitions, therefore, fail and are dismissed.

Petition dismissed.

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