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Criminal Miscellaneous No. 1402/13 of 1985, decided on 16th December. 1985.

----S. 497(5)‑‑Penal Code (XLV of 1860), Ss. 302, 307, 148 & 149‑‑Bail, cancellation of‑‑Bail granted by trial Court after taking into consideration, accusation in police report, evidence to be produced, plea of accused, opinion of Investigating Officer and other circumstances‑‑Discretion exercised by Sessions Judge, held, could not be said too be illegal or improper, trial was likely to commence shortly and even tentative assessment of evidence and circumstances of case might influence mind of trial Court‑‑Case was, therefore, considered not fit for cancellation of bail in circumstances.

Nadara v. Jamait Khan P L D 1968 S C 310 and Muhammad Sadiq and others v. The State 1980 S C M R 203 ref.

R . A . Awan for Petitioner.

Kh. Sultan Ahmed for Respondent.

Farooq Bedar, A.A.‑G. with Record

This is an application for the cancellation of bail granted to Rohail Asghar and Shakeel Asghar, respondents on 18‑4‑1985 and to Aqeel Asghar respondent on 5‑1‑1985 by the learned Sessions Judge. Lahore in case under section 3021307/1481149. P.P.C. registered. At Police Station Baghbanpura, vide F.I.R. No. 366, dated 14‑11‑1984

2. The prosecution case is that the three respondents alongwith two others duly armed with guns and pistol, in the prosecution of their common object, launched murderous assault and thereby caused the double murder of Zameer Ahmad and Atta Muhammad and injuries to Rab Nawaz on 14‑11‑1984 at 4.30 p.m. near Police Station Baghbanpura, Lahore.

3. As for the respondents, it has been alleged that Rohail Asghar had fired with his gun hitting Zamir Ahmed on his head. Shakeel Asghar fired with his gun hitting Atta Muhammad on his head, Aqeel Asghar fired with his gun causing injury to Rab Nawaz P.W. The occurrence was also seen by Fazal Ahmad, Arif, Irshad, Muhammad Jahangir, Ghulam Sarwar and Muhammad Munir.

4. The learned counsel for the petitioner vehemently contended that there are reasonable grounds to believe that the respondents have committed offences punishable under section 302/307/148/149, P.P.C. that Rohail Asghar and Shakeel Asghar having caused the death of Zameer Ahmad and Atta Muhammad respectively and Aqeel Asghar having launched murderous assault on Rab Nawaz P.W., are the main accused; that the seven eye‑witnesses have supported the allegations against the respondents; that the names of Rohail Asghar and Shakeel Asghar are mentioned in column No. 3 of the challan that the opinion of the Investigating Officer with regard to the innocence of Aqeel Asghar and the participation of Rohail Asghar and Shakeel Asghar is not based on any reliable evidence; that in any case the opinion of the Police Officer is not binding and that the learned Sessions Judge has allowed bail to the respondents on wrong facts and without legal justification. It may be noted that the learned counsel for the petitioner has not pressed the ground of the misuse of concession of bail. On the other hand the learned counsel for the respondents rigorously resisted the arguments of the learned counsel for the petitioner. He maintained that there are no reasonable grounds to believe that the respondents have committed the alleged crime; that the police file reveals different versions of the occurrence and that there is sufficient material on the police file to support the police opinion as to the innocence of Aqeel Asghar and the participation of Rohail Asghar and Shakeel Asghar respondents. Mr. Farooq Bedar, the learned A.A.‑G. while refusing to support the petition for the cancellation of bail, has pointed out that the date in the case has been fixed for the distribution of the copies of the statements of the witnesses recorded under section 161, Cr.P.C. and the trial is likely to commence in a few weeks time.

5. I have considered the arguments made by the learned counsel for the parties and have examined the police file carefully. I find that the learned Sessions Judge has appreciated the question of the grant of bail in a murder case, in accordance with the guidelines given by the Supreme Court in case Nadara v. Jamait Khan, reported as P L D 1968 S C 310. He has taken into account the accusation contained in the police report, evidence which prosecution proposes to examine, plea of defence raised during the investigation the other special circumstances of the case and the opinion of the Investigating Officer and as such it cannot be said that he had exercised discretion illegally or improperly. I feel that since the case has already been fixed in the trial Court on 21‑12‑1985 for the Supply of the copies of the statements recorded under section 161, Cr.P.C. to the accused and the trial likely to commence shortly therefore, in the interest of justice and ire all fairness to the parties should not enter into the merits of case because in the peculiar circumstances of the case ever, a tentative assessment of the statements of the witnesses, the material collected by the police during investigation; the plea of the accused/ respondents raised during investigation and the opinion of the Investigating officer, is most likely to influence the mind of the trial Court. So relying on case Muhammad Sadiq and others v. The State reported as 1980 SCMR 203, I hold that the case is not fit for the cancellation of bail at this stage. The petition is accordingly dismissed.

S.A. Petition dismissed.

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