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Criminal Miscellaneous No. 1233‑B of 1984, decided on 6th June, 1984.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S.302‑‑Cancellation of bail‑ F.I.R. lodged with delay of three days by a person not related to deceased‑‑Eye‑witness named in F.I.R. not supporting F.I.R.‑‑Heirs of deceased also not supporting case as set up in F.I.R.‑‑Case of further inquiry‑‑Trial Court exercising its jurisdiction on sound principles by a well‑reasoned order‑‑Cancellation of bail declined.

Rana Abdul Majid Khan for Petitioner.

Shah Muhammad Khan for Respondent.

This is an application under section 497, subsection (5), Cr.P.C. for the cancellation of bail granted to Raza Ali respondent in a case under section 302, P.P.C. pertaining to the murder of Malik alias Malka granted by the learned Additional Sessions Judge, Gujranwala vide his order, dated 5‑4‑1984.

The prosecution case is that on 8‑3‑1984 Murid Hussain petitioner who is also a complainant in the case was proceeding to his shop and when he passed near the Dera of Raza Ali respondent he saw the respondent asking Malka deceased (who was his servant) to bring milk from village Memberan to which the deceased refused. This infuriated the respondent who abused the deceased. The latter also returned the abuses whereupon the respondent got up from his cot and started giving fist and kick blows to the deceased who fell injured and became unconscious. The respondent called Rafique and Noora and sent the deceased to his house on a cot. The occurrence was also witnessed by Mehram. The deceased died of the said injuries.

3. The petitioner applied for pre‑arrest bail which was granted by the learned Additional Sessions Judge on the grounds that Murid Hussain petitioner who got the case registered against the respondent was inimically disposed towards him due to election rivalry and it was with mala fide intention that he reported the matter to the police after lapse of three days. He further observed that on the other hand Ahmed Ali son of the deceased had lodged a report with the police on the very day of the occurrence stating that his father Malka deceased who was suffering from asthma had fallen down near the Dera of respondent under the fit of asthma and he carried him to his Dera with the help of Ahmed Ali, Muhammad Ishaq, Murdan Shah and Bashir Ahmed. The aforementioned persons had submitted affidavits denying the incidents of alleged beating to the deceased. Affidavit of Mst. Phaphi daughter of Malka deceased and Rajan, widow of the deceased, were produced before the learned Additional Sessions Judge wherein they stated that the deceased had received injuries on account of fall. Mehram who is mentioned as eye‑witness in the F.I.R. had also denied having seen the respondent giving any injuries to the deceased. Besides him, Rafiq and Noora named in the F.I. R. as having carried the cot of the deceased at the asking of the respondent after he had been belaboured by him had also not supported the version of the petitioner (complainant as narrated by him in the F.I.R. The other ground which weighed with the learned Additional Sessions Judge was that there was three days delay in lodging the F.I.R. which was not satisfactorily explained.

4. I have heard the learned counsel for the petitioner at length and carefully perused the impugned order. I think that the circumstances of the case as mentioned in the impugned order justify the grant of bail to the respondent. It is well‑reasoned order and the learned Additional Sessions Judge has exercised his discretion on sound grounds. Certainly this is a case of further inquiry because there is a delay of three days in reporting the matter to the police, Mehram an eye‑witness named in the F.I.R. has not supported the prosecution. The children and widow of the deceased have also not supported the case as set up in the F.I.R. and on the other hand stated that the deceased who was an old man of 70 years of age had received injuries as a result of fall under the fit of asthma. Consequently, finding no merit in the application, I dismiss it and decline to recall the bail granted to the respondent.

M. A. K

Application dismissed

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