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Criminal Appeal in Criminal Petition for Special Leave to Appeal No 434 of 1975, decided on 29th January, 1976.

(On appeal from the judgment and order of the Lahore High Court Lahore, dated 5th November, 1975 in Cr. Misc. No. 3820‑B of 1975).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185 (3)‑‑Criminal Procedure Code (V of 1898), Ss. 497 & 498 --Penal Code (XLV of 1860), S. 302/148‑‑Murder‑‑Bail‑‑Deceased having an affair with accused‑appellant's wife‑‑Body of deceased found in house of appellant and report of his death recorded more than thirteen hours after occurrence‑‑Important aspects of case overlooked, by High Court in refusing bail‑‑Accused‑appellants allowed bail.

M.Perwaiz Akhtar, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

M. Asif Jan, Assistant Advocate‑General (Punjab) for the State.

Date of hearing: 29th January, 1976.

.‑‑During arguments we decided to convert this petition into appeal and to dispose it of as such.

The three appellants herein alongwith two others are accused in a case under section 302/148 read with section 149, P.P.C. They have since been committed to the Sessions to stand trial for the said offences, The other two accused namely, Abdullah and Sharif have been allowed bail by the High Court vide order. dated 5th November, 1972. However, by the same order the High Court has refused bail to three appellants herein, who now seek leave to appeal.

The deceased in this case is Ali son of Jewan Langrial, a resident of Chak No. 572/E.B, P. S. Vehari. On the night between the 15th and 16th September, 1974 he was murdered in the house of appellant No.) situated in Bangla Fazil in Mauza Faiz Wah in the area of P.S. Luddan. The other two appellants are his sons; so also the other two accused who have been allowed bail by the High Court.

It appears that the appellant No. 1 himself lodged the report at P.S. Luddan on 16th September, 1974 at about. 12‑30 p.m. alleging that Ali (deceased) had earlier abducted his wife. Mst. Fateh Mai whom he recovered and brought back to his house through the intervention of the Baradari. However, on the night between the 15th and 16th September, 1974 as he and his four sons were asleep at about 2‑00 a.m. he found that Mst. Fateh Mai has disappeared from her cot. He and his sons during the search found that she was busy in love‑making with her paramour . Ali near fodder‑cutting machine. On thus being surprised Mst. Fateh Mai escaped while Ali was apprehended and given beating by the appellant and his sons. However, there is no mention in the F.I.R. as to the fate of Ali after being belaboured by the three appellants and the other two accused.

At 7‑00 p.m. on the same day another case was registered at Thana Luddan on the basis of Murasla sent by Ijaz Ahmad, A.S.I. based on the statement of one Qamar Din' in which the latter had stated that he and Karim Bakhsh and Ali deceased were going to Hasilpur. As they reached Bangla Fazil at about 5‑30 a.m. and were near the Haveli of appellant No. l he alongwith his four sons of whom the appellants were armed with sticks and the other two were empty‑handed, emerged from their Haveli and dragged Ali inside and started beating him with sticks and fists. The informant and his other companion Karim Bakhsh tried to intervene but they were threatened by the appellants who said that Ali had brought insult to their family and that the informant and his companion should keep away for the sake of their own safety. The informant and his companion being empty handed, did not make any attempt to rescue Ali and proceeded to Hasilpur. The report also mentioned that Ali deceased had earlier abducted Mst. Fateh Mai wife of Rehana appellant No.l.

The High Court distinguished the vase of the three appellants from the other two accused on the ground that the latter were empty handed while the three appellants wielded sticks killing the deceased.

We have heard Mr. Pervaiz Atkhtar learned counsel for the appellants and the learned Assistant Advocate‑General for the State. The fact that the deceased had an affair with Mst. Fateh Mai, wife of appellant No. 1 is admitted, as also the fact that the deceased had earlier eloped with Mst. Fateh Mai. Then there is the all important fact that the body of the deceased was found in the house of the appellants and the report of his death was riot recorded until 7‑00 p.m. These important aspects of the case were overlooked by the High Court while refusing bail to the appellants.

Accordingly we accept the appeal and allow the appellants' bail in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of A . C . Vehari.

S.Q. Bail granted.

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