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Criminal Petition for Special Leave to Appeal Nos. 97 and 110 of 1978, decided on 30th April 1978.

(On appeal from the judgments and orders dated 15th March, 1978 of the Lahore High Court in Criminal Miscellaneous Nos. 701/B/78 and 952/B/78).

Art. 185 (3)‑Penal Code (XLV of 1860), S. 302/307/148/149 Criminal Procedure Code (V of 1898), S. 497/498‑Bail‑Police not expressing any opinion that accused were innocent‑Supreme Court at leave granting stage cannot form definite opinion on question of plea of alibi of accused‑Names of accused persons appearing in F. I. R.‑Accused at time of occurrence armed with gun and rifle Part attributed to accused showing that prima facie they participated in crime‑Bail refused by Supreme Court in circumstances.

M. B. Zaman, Senior. Advocate Supreme Court, At. Bashir Zafar, Advocate Supreme Court, A. Karim, Advocate‑on‑Record and M. Aslam Chattha, Advocate‑on‑Record for Petitioners.

Kh. M. Afzal, Addl. A.G. (Punjab), Ejaz Ali, Ghulam Murtaza Khan, Advocate Supreme Court and Wali Muhammad Kh., Advocate‑on -Record for the State.

Date of hearing : 30th April, 1978.

This order will govern Criminal Petitions for Special Leave to Appeal No. 97/78 and No. 110/78, as they arise from the same occurrence. A case was registered under section 302/307/148/149, P. P. C. against the petitioners in the above cases for the murder of one Muhammad Ishaq at P. S. Ferozewala, District Sheikhupura on 28‑9‑1977 at the instance .of one Muhammad Ashiq son of Chiragh Din, caste Rajput, resident of Mauza Sheediwal, Tehsil Ferozewala, District Sheikhupura.

The prosecution case is that the petitioners in the above cases, while armed with gun and rifle respectively, alongwith other co‑accused waylaid the complainant and his companions. On the Lalkara of co‑accused Khushi Muhammad Chhura and Niaz, another co‑accused Shah Muhammad fired a rifle shot which hit Muhammad Ishaq deceased on his chest, who fell down and died there. The complainant and his companions were empty‑handed. They hid themselves behind the Sarkanda' bushes and on account of firing by all the accused the complainant and Muzaffar P. W. received simple injuries on the legs below the knees.

The petitioners filed bail application before the Additional Sessions Judge, Sheikhupura, which was dismissed vide' order dated 2‑2‑1978. The matter was then taken to the Lahore High Court in Criminal Miscellaneous Nos. 701 /B and 942/B of 1978 but these were dismissed by a learned Single Judge vide his order dated 15‑3‑1978. The petitioners seek permission to file an appeal against the said order.

Mr. M. B. Zaman and Chowdhary Muhammad Aslam Chattha, has brought to our notice that Babar Rashid and Abdur Rashid were found innocent, and their names were shown in coulmn No. 2 in the challan According to. Mr. M. B. Zaman alibi was pleaded by Khushi Muhammad Niaz, Muhammad Bashir and Jalal and the police authorities have considered the evidence of alibi as weighty. He further contended that he deceased had received one injury which is alleged to have been caused by Shah Muhammad.

The contention of the learned counsel has not impressed us. It is not possible, at this stage, for us to give a definite opinion on the question of alibi to these petitioners. The police has also not expressed any opinion hat the above‑mentioned persons are innocent. In these circumstances we do not consider this as a fit case for interference.

So far as Qasim and Salim petitioners are concerned it is contended by Ch. Muhammad Aslam Chattha that they were falsely implicated in the case the complainant party was under the erroneous impression that they were the helpers of the co‑accused. He further contended that no injury has been attributed to the petitioners and the injuries on the P. Ws. Were declared simple in nature.

The very fact that names of there petitioners appear in the F. I. R. and that Qasim was armed with a gun and Salim was armed with a rifle, and also the part attributed to them, show that prime facie they participated in the crime. The learned counsel for the petitioners has referred to two decisions of this Court in Muhammad Akbar and 4 others v. State (1978 S C M R 7) and Abdul Ghaffar v. Anwarul Hasan (1978 S C M R 146). These decisions are distinguishable and are not applicable to the facts of the present case.

In these circumstances, we do not consider that it will be desirable to relapse the petitioners on bail. Both the petitions are dismissed.

M. Z M Leave refused.

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