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Petitions for Special Leave to Appeals Nos. 453 and 495 of 1978, decided on 24th April, 1979.

(On appeal from the orders of the Lahore High Court, dated 10th of October, 1978 in Criminal Miscellaneous No. 3658/B of 1978, and dated 6th of November, 1978, in Criminal; Miscellaneous No. 4008/B of 1978).

‑‑‑Ss. 497, 498 & 173‑‑Bail, grant of‑‑Reports of Investigating Officers‑‑Relevancy of‑‑Reports of Investigating Officers, though not binding on Courts, could be taken into consideration at bail stage for deciding as to whether or not accused were entitled to grant of bail.

‑‑S. 498‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑ Presence of closely related three eye‑witnesses at place of occurrence at mid‑night doubtful‑‑No other evidence to link accused with death of deceased‑‑High Court having properly exercised discretion in granting bail Supreme Court refused to interfere.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), S. 302‑‑Cancellation of bail‑‑Actual occurrence not witnessed by any one‑‑Co‑accused allowed bail on ground of case being a blind one‑‑There being additional evidence of identity of accused who had gone to summon deceased from his house before occurrence, his case stands distinguished and bail allowed to him by High Court cancelled.

Ch. Imtiaz Ahmad with Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Shahid Hussain Kadri for Respondents Nos. 1 and 2 with Muhammad Aslam, Advocate‑on‑Record (in P.S.L.A. 453 of 1978).

S.A. Saeed, for Respondents Nos. 1 and 6 with Muhammad Aslam, Advocate‑on‑Record (in P.S.L.A. 495 of 1978).

Nemo for the State (in both Petitions).

Date of hearing : 24th April, 1979.

This order will dispose of Petition for Special Leave to Appeal Nos. 453 and 495 of 1978 both filed by Muhammad Rafiq, for the cancellation of the bail of the eight respondents, all of whom are accused in the same case.

2. In P.S.L.A. 453 of 1978 the petitioner has prayed for the cancellation of bail of Abdur Rahman and Abdul Qayum alias Jaji granted by the learned Single Judge of the Lahore High Court vide order dated 10th of October 1978 while in P . S . L . A . 495 of 1978 he has prayed for the cancellation of bail of Muhammad Bashir, Ahmad Din, Zafar, Rashid, Nazir Ahmad and Majeed granted by the same learned Judge vide order dated the 6th of November, 1978 passed on the basis of his earlier order dated the 10th of October, 1978.

3. The occurrence in this case took place on the night between the 2nd/3rd of May, 1978 and the F.I.R. was lodged at 9‑30 a.m. in the morning by Muhammad Rafiq (complainant‑petitioner) the father of Muhammad Yasin deceased. The main motive for the murder of Muhammad Yasin as given in the F.I.R. is that Abdul Qayum accused (respondent No.2 in P.S.L.A. 453 of 1978) has illicit relations with Mst. Umatul Qadir, a sister of Nazir co‑accused, but subsequently she developed illicit relations with Muhammad Yasin deceased and severed her relations with Abdul Qayum accused‑respondent. It is alleged that at about mid‑night in the night between 2nd/3rd of May, 1978 Abdul Qayum respondent went to the house of Muhammad Rafiq (complainant) and told Mst.Asghari the mother of Muhammad Yasin, deceased, that some unknown persons were stealing bundles of wheat from their thrashing floor. As Abdul Qayum accused‑respondent was on friendly terms with her son Muhammad Yasin (deceased), Mst. Asghari sent her son with the respondents to look into the matter. Thereafter she also sent her husband Muhammad Rafiq complainant after the boys. It is alleged that as soon as Muhammad Yasin deceased reached the field of his uncle Muhammad Haqiq P. W. the seven co‑accused of Abdul Qayum (all respondents in the two petitions under consideration) emerged from the adjoining field and they along with Abdul Qayum started inflicting injuries on Muhammad Yasin resulting in his death The occurrence is said to have been seen by Muhammad Rafiq (complainant) the father of the deceased and his i.e. (the deceased's) two real uncles Muhammad Haqiq and Muhammad Hafiz P.Ws.

We have heard the learned counsel for the petitioner, and the respondents as well as the learned Advocate for the State in both the cases. The learned High Court Judge had granted bail to the respondents mainly on the ground that:

"The case was investigated by three different investigating officers. They were S.H.O. Tahir Mahmood, Additional S.P., Rafi Ahmad Pervaiz and S.P.Major Muhammad Arif Chaudhry. All these officers were of the opinion that it was a case of blind murder and that none of the eye‑witnesses was present at the relevant time "

The learned counsel for the petitioners vehemently urged that the reports of the investigating officers are not binding on the Court and therefore bail should not have been granted to the accused respondents on the basis of those reports.

It is, however, now settled law that although the reports of the investigating officers are not binding on the Courts, they can be taken into consideration at bail stage in deciding as to whether or not the accused are entitled to the grant of bail. We have gone through the Zimnis and the reports of the three investigating officers named above. We notice that a large number of witnesses from both sides were examined by the investigating officers. The investigation had to be transferred from one officer to another, (two of whom were officers of superior rank, namely, Additional S.P. and the S.P. of the Crimes Branch) because of allegation of partiality being made against the police. The first named two officers have stated in their reports that the case was a complicated one, but Major Muhammad Arif S.P., Crimes Branch has stated that it is a case of blind murder, in other words, a murder‑case which had not been witnessed by any one. The learned counsel for the respondents submitted that there appears to be some force in the view because all the three eye‑witnesses mentioned in the F.I.R. are closely related to the deceased. Muhammad Rafiq P.W. is his father while the remaining two are his uncles. The presence of all of them at the spot at the time of occurrence, in the middle of the night, appears to be rather doubtful. As rightly observed by the learned High Court Judge "if the eye‑witnesses were not present at the scene of occurrence at the relevant time then there is nothing to link the petitioners (respondents before us) with the death of the deceased". We therefore feel that the learned High Court Judge had properly exercised his discretion with regard to respondents Abdul Rahman, Muhammad Bashir, Ahmad Din, Zafar, Rashid, Nazir Ahmad and Majeed. The same however cannot be said with regard to Abdul Qayum (respondent No. 2 in P. S. L. A. 453 of 1978). As stated in the F.I.R. it is he who had gone to the house of Rafiq complainant and informed the mother of the deceased that some persons were stealing their wheat. He was already known to Mst. Asghari (the mother of the deceased) as a friend of her son. The petitioner's counsel therefore contended that there is additional evidence about the identity of Abdul Qayum respondent. As stated by Major Muhammad Arif S.P., Crimes Branch in his report, it is probably a blind case i.e. a case in which the actual occurrence had not been witnessed by any one. As such the identity of the assailant who joined Abdul Qayum in the murder might be doubtful but, for the reasons mentioned above, on the material available at present, there would be no doubt about the identity of Abdul Qayum respondent.

We, therefore, convert Criminal Petition No. 453 of 1978 into an appeal and accept it to the extent that the bail granted to Abdul Qayum alias Haji by the learned Single Judge of the Lahore High Court vide order dated the 10th of October 1978, is cancelled. The petition qua Abdur Rahman is however dismissed. We may however mention that the above‑noted observations made by us about Abdul Qayum respondent, relate only to the question of bail, and would have no bearing on the merits of the case which would be decided by the learned trial Court on the evidence recorded by it.

As we do not find any force in the contentions raised by the learned counsel for the petitioner in Criminal Petition No.495 of 1978, the same is therefore dismissed.

S. A. Petition dismissed.

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