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Criminal Petition for Special Leave to Appeal No. 75 of 1977, decided on 26th November, 1977.
(On appeal from the order of the Lahore High Court, Lahore, dated 4‑3‑1977, passed in Criminal Miscellaneous No. 735/B of 1977).
(a) Criminal Procedure Code (V of 1898)‑
---S. 498‑Bail‑Benefit of doubt‑Cannot be given to accused simply on account of his cc‑accused having been found innocent‑Accused named as main accused in F. I. R. and attributed a firearm shot on vital part of deceased's body and such aspect of matter not doubted even on reinvestigation‑Rail application rejected in circumstances. [Benefit of doubt].
(b) Constitution of Pakistan (1973)‑
‑‑ Art. 185(3)‑Leave to appeal‑Appreciation of evidence‑Conten tion as to ocular evidence being in conflict with medical evidence, held, relates to appreciation of evidence and such course not admissible at leave to appeal stage‑[Evidence].
(c) Criminal Procedure Code (V of 1898)‑‑
‑‑ S. 498‑Bail‑‑Delay in commencement of trial‑Not per se sufficient to warrant interference by Supreme Court‑Delay not appearing to be unconscionable, interference with order rejecting bail application declined but petitioner advised to renew his plea for bail before appro priate forum should trial be inordinately delayed‑[Delay].
Mian Saeedur Rehman Farrukh, Advocate Supreme Court instructed by S. Abid Nawaz, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 26th November, 1977
‑The petitioner seeks leave to appeal against the order of the Lahore High Court, dated 4‑3‑1977, upholding the order of the learned Additional Sessions Judge, Lyallpur, dated 9‑2‑1977, whereby his application for bail was dismissed.
The facts, as disclosed by the F. I. R. briefly stated are that on 8‑11‑1975 at about sunset time the deceased along with his son, the complainant, was returning to his dera, and while on his way he was attacked by the petitioner Ghulam Sarwar and his co‑accused. The petitioner is alleged to have fired the first shot at the neck of the deceased. The other accused also inflicted injuries with their respective weapons, e.g. hatchets, etc. The deceased died at the spot.
The motive stated in the F. I. R is that some time prior to the present occurrence the brother of the petitioner was murdered and the deceased was named in the F. I. R. as one of the accused. Thus, the deceased was murdered in order to avenge the said murder.
The learned counsel for the petitioner has argued before us that the Courts below have improperly exercised their discretion in refusing bail to the petitioner. He has submitted that the petitioner is entitled to be released on bail for the reasons, firstly, that the prosecution story, as originally put forward, has been found to be false as a result of re‑investigation of the case, according to which three out of five accused were found to be innocent and two new accused, namely, Isa and Saadi, were implicated; secondly, that the prosecution story to some extent stands belied by the medical evidence, and, thirdly, that the petitioner has been in the Jail for nearly two years.
We have heard the counsel at some length and perused the record available to us. It is clear that so far as the re‑investigation by the Police is concerned, the petitioner cannot get any advantage of it because even if three of his co‑accused have been found to be innocent, he cannot, simply on that account, be given the benefit of doubt. He has been named as the main accused in the F. I. R. and is attributed a firearm shot on the vital part of the deceased's body, and no doubt has been thrown on this aspect of the matter even on re‑investigation.
As regards the contention that the ocular evidence is in conflict with the medical evidence, it may be observed that this contention relates to the appreciation of evidence, which cannot be undertaken at this stage. As for the last submission, we are of the view that the delay in the commence ment of trial in the instant case does not appear to be unconscionable, nor is it even otherwise, per se, sufficient to warrant interference by this Court. The petitioner may, however, renew his plea for bail before the appropriate forum, if the trial is inordinately delayed.
For the foregoing reasons we do not think the Court below have exercised the discretion improperly. We would accordingly dismiss this petition.
Petition dismissed
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