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Petition for Special Leave to Appeal No. 121 of 1976, decided on 7th November, 19.77.
(On appeal from an order of the Lahore High Court made on 12‑2‑1976 in Criminal Miscellaneous No. 269‑B of 1976).
‑S. 497(5)‑Bail, cancellation of‑Allegation as to respondents accused having been abusing concession of bail granted to them by High Court not made before High Court‑Such allegation, held, should in first instance have been brought to notice of High Court send such having not been done no justification existed for interference by Supreme Court‑Constitution of Pakistan (1973), Art.185(3).
Q. M. Salim, Advocate and Inayat Hussain, Advocate‑on‑Record for Petitioner.
Aftab Farrukh, Advocate and Ghulam Mujtaba, Advocate‑on‑Record for Respondent Nos. 1 and 2.
Nemo for Respondent No. 3
Date of hearing: 7th November 1977.
‑This petition seeks cancellation of bail allowed to the respondents, Shafiq Khan and Faryad Khan by a learned Judge of the Lahore High Court in a murder case by his order dated the 12th of February, 1976.
In the First Information Report registered on the 22nd of September1975 five accused persons, viz. Rafiq Khan, Shafiq Khan, Faryad Khan, Ashraf Khan and Ishfaq Khan were named as having attacked and killed Mumtaz Khan deceased. A lalkara was attributed to Rafiq Khan, whereas the respondents Shafiq Khan and Faryad Khan were said to have fired in the air. Ashraf Khan had aimed his gun at the deceased, but his shot had missed, and the deceased was hit only by a shot fired by Ishfaq Khan. In the circumstances, bail was allowed to Rafiq Khan by the Sessions Judge, mainly on medical grounds on 5‑11‑1975 and bail has now been allowed to Shafiq Khan and Faryad Khan by the High Court on the ground that their case was clearly distinguishable from that of Ashraf Khan and Ishfaq Khan.
It is submitted on behalf of the petitioner that the learned Judge in the High Court has completely overlooked the provisions of section 149 of the Pakistan Penal Code, according to which the two respondents were also equally liable for the acts of Ashraf Khan and Ishfaq Khan co‑accused as they all shared the common object of murdering Mukhtar Khan deceased. It is next submitted that in any case the two respondents have been threaten ing the prosecution witnesses, and thus abusing the privilege of bail granted to them by the High Court.
On behalf of the respondents, Mr. Aftab Farrukh denies the allegation that the respondents have in any manner attempted to interfere with the prosecution witnesses, and submits that the report said to have been made by Mohammad Nawaz at the police station concerned on the 7th ‑of July 1977 is factually incorrect.
We find that on the allegations made in the First Information Report, the High Court does not appear to have exercised its discretion improperly in distinguishing the case of the respondents from that of the co‑accused Ashraf Khan and Ishfaq Khan. We also find that the allegation that the respondents have been abusing the concession of bail granted to them by the High Court should have been brought to the notice of that Court in the firs instance, but the same has not been done so far. In the circumstances, we are not satisfied that any justification is made out for our interference in the matter. The petition is, therefore, dismissed. The complainant may, however, move the High Court, if so advised, on the fresh ground stated before us, namely, that the respondents are abusing the privilege of bail.
Petition dismissed.
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