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Criminal Petition for Special Leave to Appeal No. 299 of 1978, decided on 9th November, 1978.
(On appeal from the order dated 25‑6‑1978 of the Lahore High Court, Lahore, passed in Cr. Misc. No. 2162‑B of 1978).
-----Art. 185(3)‑Leave to Appeal to Supreme Court‑‑Supreme Court does not at leave to appeal stage embark upon a detailed inquiry into factual matters‑Discretion exercised by High Court in not allowing bait to petitioners not appearing to have been exercised arbitrarily or perversely, order, held, requires no interference‑Criminal Procedure Code2V of 1898), S. 497/498.‑
Talib H. Rizvi, Advocate Supreme Court and All Imam Naqvi, Advocate- on‑Record for Petitioners.
Khawaja Muhammad Afzal, Addl Advocate‑General (Punjab) with Ijaz Ali, Advocate‑ on‑Record for the State.
Date of hearing : 9th November, 1978.
.‑This is a petition for special leave to appeal directed against the order dated 25‑6‑1978 of a learned Single Judge of the Lahore High Court refusing bail to the petitioners who, along with Mukhtar Husain and Abdul Razzaq, are accused in a case under 302/34, P. P. C. for committing the murder within the area of Kot Adu, District Muzaffargarh.
The facts of the as disclosed in the Information Report, are that Mohammad Ayub complainant, on receipt of information that his brother Mohammad Yamin was lying dead on the railway track near Sanawan Railway Station, went to the spot and found the dead body for his brother with his right leg severed from the hips. A revolver, pistol and a chappal were also lying near the dead body. While lodging the report the complainant suspected the petitioners of having killed his brother, because, a few days earlier Inayatullah and Ataullah petitioners had, in the company: of Liaqat and Faiz Bakhsh petitioners, threatened the deceased and the complainant to avenge the murder of their father Ghulam Qadir. According to the petitioners, the complainant and his deceased brother had killed the above said Ghulam Qadir.
The case was investigated and the revolver recovered from the spot was found to be that of Abdul Razzaq accused; who became an approver and made a statement before the A. C. Kot Addu on 6‑3‑1978, wherein he narrated, in minute details, the facts leading to the murder of Mohammad Yamin. According to him, the petitioners after strangulating him to death threw his dead body on the railway track. Accordingly, the petitioners alongwith Mukhtar Hussain were arrested. They applied for bail, and the Add]. Sessions Judge, Muzaffargarh, rejected the application insofar as it related ' to the petitioners, but allowed bail to Mukhtar Hussain co‑accused since his case, according to the learned Judge, fell within the purview of the provisions of 'section 497(3), Cr. P. C. The petitioners then approached the High Court, but a learned Single Judge also refused them the concession of bail.
Mr. Talib H. Rizvi, Advocate, appearing on behalf of the petitioners, sub mitted that Mohammad Sharif petitioner remained admitted in the Nishtar Hospital at Multan from 10‑5‑1977 to 25‑5‑1977, as he had been operated upon for some nasal disease. Therefore, it could not be possible for him to have participated in the occurrence as narrated by the approver This circumstance, according to him, shows that the approver's statement is false and no, reliance can be placed on it. Since the'1case of the prosecution rested mainly on this statement, which could not be relied upon, the petitioners were entitled to the rant of bail.
Kh. Mohammad Afzal, Addl. Advocate‑General, appeared with record in pursuance of a notice issued to him, submitted, in reply, that the approver's statement which received support from other circumstances, clearly showed ‑, that the petitioners had participated is the commission of the crime. He also submitted that the allegation that Inayatullah. and Ataullah murdered the deceased was fortified by the circumstance that their father was murdered by the complainant party on account of which they nurtured a grudge and had also held out a threat to the complainant party to avenge the said murder. As regards the plea of alibi raised on behalf of Mohammad Sharif petitioner, he read out before us a statement by the Registrar, E. N. T. Nishtar Hospital, Multan, to the effect that although the bed ticket of Mohammad Sharif showed that be remained admitted in the Hospital from 10‑5‑1977 to 25‑5‑1977, another entry existed that showed that he was, in fact, absent from the Hospital on 24‑5‑1977, the date of occurrence.
We are afraid we cannot, at this stage, embark upon a detailed inquiry into factual matters. The discretion exercised by the High Court in not allowing bail to the petitioners does not appear to have been exercised arbitrarily or perversely and, therefore, requires no interference. However, we would direct the trial Court to., give priority to this case. The petitioners may also, if so advised, apply for bail afresh; after some evidence has been recorded.
The petition is dismissed with the above observations.
Petition dismissed.
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