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Petitions for Special Leave to Appeals Nos. 224 and 271 of 1975, decided on 14th January, 1976.

(On appeal from an order of the Lahore High Court made on 26‑5‑75 in Crl. Misc. No. 1273‑B of 1975).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.497 (5)‑‑Bail‑ Cancellation of‑‑Investigation Report exonerating accused and in any case part assigned to them only of causing injuries to complainant and his companions excluding deceased‑‑Held, High Court exercised its discretion properly in refusing to cancel bail of respondent‑accused‑ Leave to appeal refused.

‑ ‑‑‑Art.185 (3)‑‑Criminal Procedure Code (V of 1898), Ss.497(2)(5) & 498‑‑Bail‑‑Cancellation of‑‑High Court canceling bail of accused- appellant on ground that although latest investigation report exonerated him, yet eye‑witnesses consistently attributed fatal Dang blow to him‑ Held, case of accused‑appellant could not be distinguished from four other co‑accused, already granted bail, without sound reasons‑‑Interim bail of accused‑appellant confirmed.

Attaullah Sajjad and Aftab Farrukh, Advocates for Petitioner (in C.P. No.224/75).

Ijaz Ali, Advocate‑on‑Record for the State (in both the Appeals).

Abdul Waheed Khawaja, Advocate, Hamid Aslam Qureshi, Advocate‑on‑ Record for Complainant(in Civil Petition No. 224/75).

Ch. Ghulam Murtaza Khan, Advocate, Hamid Aslam Qureshi, Advocate on‑Record for Petitioners (in C.P. No. 271/75).

Nemo for Respondents Nos. i to 4.

Date of hearing: 14th January, 1976.

This order will dispose of Criminal Petitions for special leave to appeal bearing Nos. 224 and 271 of 1975. The first one is by Fazal Haque, one of the accused persons, whose bail has been cancelled by the Lahore High Court by its order dated the 26th of May 1975, whereas the second petition is by the complainant who is aggrieved by the refusal of the High Court to cancel the bail allowed by the Sessions Judge to the four respondents.

In an incident occurring on the 29th of September, 1974, one person by the name of Shafqat was killed, whereas injuries were caused to the complainant Zafar Iqbal and his companions. In the first information report eight persons were named as the assailants including Fazal Haque (petitioner in Petition No.224/75) and the four respondents cited in Petition No.271. The matter was investigated repeatedly by several Police Officers, and in the final report submitted by Inspector Abdul Hamid of the C.I.A., Fazal Haque and the other four accused were reported to be innocent. It was further stated that the incident had developed all of a sudden when the parties were returning from a Mela. However, the challan was submitted against all the eight accused persons cited in the F.I.R., and the matter was left to the discretion of the Court.

It was stated at the Bar that the inquiry proceedings had made substantial progress as out of four eye‑witnesses three had already been examined, but before the case could be committed to the Court of Session, the commitment proceedings had been abolished under the law Reforms Ordinance, 1975, with the result that the case is now auto matically pending before the Sessions Court for trial.

We shall first take up complainant's prayer for the cancellation, of bail allowed to respondents Nazir Ahmad, Abdul Haq, Khurshidul Haq and Ismail. As already stated, the latest investigation report has exonerated them, and in any case the part assigned to them is only of causing injuries to the complainant and his companions, excluding the deceased Muhammad Shafqat. In the circumstances, the learned Judge in the High Court appears to us to have exercised his discretion properly in refusing to cancel their bail. We see no justification to interfere in the matter. We would accordingly dismiss Petition No.271 of 1975.

As regards Petition No. 224 of 1975 by the accused Fazal Haque, we have decided to convert this petition into an appeal and dispose it of accordingly.

The High Court has cancelled the bail previously allowed to the accused Fazal Haque mainly on the ground that although the latest Investigating Officer had exonerated this man also, yet the eye‑witnesses had consistently attributed the fatal Dang blow to him. It is submitted by the learned counsel appearing for the complainant as well as for the State that the case of Fazal Haque did not fall under subsection (2) of section 497 of the Cr.P.C., as no further inquiry was needed.

On the other hand, it is submitted by Mr. Ataullah Sajjad, appearing for Fazal Haque, that the investigation has shown that the motive given in the F.I.R. was n6t correct, and that the incident had originated all of a sudden when the parties were returning from a Mela. and the elders of the family were falsely implicated, although the actual incident had taken place between the younger members.

We do not think it appropriate at this stage to express any opinion as to the merits of the respective contentions advanced by the learned counsel for both sides, but we consider that for the purposes of bail the petitioner is entitled to the benefit of the opinion expressed by the latest Investigating Officer, and the High Court was, therefore, not justified in canceling his bail, without there being any sound reasons for distinguishing his case from the other four co‑accused. Fazal Haque had been allowed interim bail by a learned Judge of this Court by his order dated the 6th of June 1975. We would accept this appeal and confirm the interim bail already allowed.

S.Q. Order accordingly.

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