Find a Lawyer

Criminal Miscellaneous No. 677-11 of 1984, decided on 11th April, 1984

Canal Procedure Code (V of 1898)--,

---S, 497(5)--Penal Code (XLV of 1860), S. 302/307/34--Bail, cancellation of--First Information Report lodged promptly--According to First information Report and eye-witnesses accused responsible for firing fatal shot at deceased who was a boy of ten years--Zimni recorded giving no indication that accused had no involvement, and at no stage investigation officer coming to conclusion that accused was innocent-- Name of accused not mentioned in column 2 of Challan and no indication given in body of report under S. 173, Criminal Procedure Code, about innocence of accused--Illicit weapon recovered from accused--Bail granted to such accused by trial Court cancelled in circumstances.

(b) Criminal Procedure Code (V of 1898)--

---S. 497(5)--Penal Code (XLV of 1860), S. 302/307/34--Bail, grant of--Discretion of lower Court ordinarily not to be interfered with by High Court but where discretion not exercised judiciously, High Court, held, would be duty bound to interfere with such decisions.

Dr. A . Basit for the Petitioner.

M . Saleem Shad for the State.

S.M.K. Lodhi and Mirza Dilshad Ahmad for the Complainant.

The case was registered on 28-9-1983 at Police Station Ferozewala, on the statement of Muhammad Rafee. He disclosed in the F.I.R. that his cousin Muhammad Ishfaq contested the last B.D. Election and was declared successful; that he alongwith Muhammad Ishfaq, Muhammad Arshad, Zulfiqar Ali and lqbal Hussain deceased (aged ten years), was returning from the Polling Station, when they reached seven Karams from the soling of Sharaqpur, a car was found parked and Ghulam Nabi respondent, his father Muhammad Tufail and Javed were present there; that Javed gave a Lalkara that Ishfaq had come and should not be allowed to escape. Whereupon, Ghulam Nabi respondent fired a shot with carbine at Ishfaq which hit Iqbal Hussain on the head; that Muhammad Tufail also fired a shot but it did not hit anybody; that the respondent and the co-accused occupied the car and sped away. It was further disclosed in the F.I.R. that Muhammad Ishfaq had a civil litigation with Javed co-accused over the possession of certain shops. Muhammad Tufail, father of the respondent, was an opposing enemy of Muhammad Ishfaq.

2. Ghulam Nabi respondent applied for bail in the Court of Sessions Judge and he was admitted to bail vide order dated 2-2-1984 on the grounds that he had only indirect motive for making the assault; that on both sides of his head the deceased had received carbine injuries with blackened margins which fact excluded the possibility of a single fire shot having been aimed at from a distance of 6/7 yards; that the D.S.P. and the S.P. were doubtful about the participation of the respondent; that the boy was hit by a stray bullet during the celebration of victory by the complainant party; that Zimnis dated 3-1-194 and 15-1-1984 furnished indication that Ghulam Nabi respondent ad no involvement in the matter; and that it was a case of further enquiry.

3. According to the F.I.R. and the eye-witnesses, Ghulam Nabi respondent was responsible for firing the fatal shot at lqbal Hussain deceased who was a boy aged ten years. I have gone through the case diary. Zimni was recorded on 15-1-1984 but there was no indication from the said Zimni that the respondent had no involvement in the matter. I have also perused the Zimni dated 13-1-1984. Certain persons joined the investigation. The D.S.P. came to the conclusion that no definite opinion could be given. Another Zimni was recorded on 14-1-1984 and the same was the finding of the D.S.P. The complainant party joined the investigation on 19-1-1984 and they stuck to their version A recorded on 4-2-1984 and 5-2-1984. At no stage, the Investigating Officer came to the conclusion that the respondent was found innocent. The challan has been submitted in Court. The name of the respondent has not been mentioned in column' No.2 of the challan . It is also not mentioned .in the body of the report under section 173, Cr.P.C. that in the investigation of the case the respondent was found innocent. Ordinarily, this Court does not interfere with the discretion exercised by the lower Courts but where the discretion is not exercised judiciously, this Court is duty bound to interfere with such decisions. In the instant case, the fatal shot had been attributed to the respondent. The complainant and the other eye-witnesses fully supported the version given in the F.I.R. which was promptly lodged. Illicit weapon had already been recovered from the respondent. The respondent was not found innocent and his name was neither mentioned in column No. 2 of the challan nor any indication was given in' the body of the report under section 173, Cr.P.C. that the respondent was found innocent.

4. Taking all these circumstances into consideration, I set aside the order of the learned Sessions Judge and cancel the bail of the respondent.

M . Y . H .

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.