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Petition for Special Leave to Appeal No. 421 of 1976, decided on 21st December, 1976.
(On appeal from an order of the Lahore High Court made on 29-9-1976 in Cr. Miscellaneous No. 2035/B of 1976).
----S. 497(5)-Bail, cancellation of-Dying statement made by one deceased implicating petitioner-Premature at leave to appeal stage by Supreme Court to say whether such statement be or be not accepted against petitioner or against both accused-No competent Court having yet recorded any finding as to deceased having falsely implicated co- accused released on bail, any opinion formed by Investigating Officer in such behalf any expression of view by High Court at such juncture, held, cannot be used as an argument for branding dying statement to be false against petitioner, hence, it could not be said that no reasonable grounds existed for believing petitioner to be guilty of an offence punishable with death or imprisonment for life.-[Dying declaration].
Ch. Nazir Ahmad Khtan Senior Advocate and Mahmood Qureshi, Advo cate-on-Record for petitioner.
Major Mufii Nazar Muhammad, Advocate and Ijaz Ali, Advocate-on- Record for Respondents.
Date of hearing 21st December, 1976.
The petitioner, along with one Yaqub, is facing prosecution under section 302/34, P. P. C. for the murder of two persons named Abdul Hamid and Muhammad Ashraf. The Additional Sessions Judge allowed bail to both the accused persons by his order dated the 11th of March 1976. Thereupon, the complainant moved the High Court for the cancellation of bail, which application was allowed by the High Court only as against the petitioner. He now seeks leave to appeal.
It is contended by Ch. Nazir Ahmad Khan learned counsel for the petitioner that the High Court having accepted for the time being the fact that the co-accused Yaqub had been falsely roped in, it should not have relied on the dying statement of the deceased for canceling the bail of the petitioner. He further submits that the motive alleged against the petitioner is rather thin, and the prosecution witnesses are apparently not supporting the case. It appears to the learned counsel that in these circumstances the High Court was not at all justified in canceling the bail.
We find that whatever the state of the other evidence available in the case, at least the dying statement made by deceased Abdul Hamid fully implicates the petitioner and it is premature for us to say whether the said statement should be accepted or not against the petitioner or against both the accused. No competent Court has yet recorded any finding that the deceased had falsely implicated Yaqub, and therefore, any opinion formed by the Investigating Officer in this behalf, or any expression of view by the High Court at this juncture, cannot be used as an argument for saying that the dying statement is false as against the petitioner.
It would appear, therefore are no reasouable grounds for offence punishable with death or therefore, dismissed.
Petition dismissed.
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