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Criminal Miscellaneous No. 179/B of 1987, decided on 17th February, 1987.

‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑ Accused allegedly killed at night time while asleep and role of holding deceased by arms imputed to accused‑‑Question whether any necessity arose for accused to hold arms of deceased m such circumstances called for further inquiry‑‑Interference with bail order of accused declined, in circumstances.

‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑ Accused attributed fatal knife injury to deceased and at initial stage of investigation found guilty of offence‑‑Investigation, however, changed hands and second Investigating Officer, collecting some evidence, showing involvement of another set of accused persons in the crime‑ Nevertheless, his investigation remaining inconclusive‑‑Accused appearing to be guilty of offence imputed to him and order granting him bail was thus illegal and improper‑‑Bail cancelled, in circumstances.

Riaz Kiani for Petitioner.

Rana Zahid Mahmood for the State.

This is u' petition under section 497(5), Cr.P.C. by Siraj Din, petitioner, for cancellation of bail granted to Muhammad Hanif and Akbar Ali, respondents Nos. 2 and 3 by an Additional Sessions Judge of Okara on 28‑12‑1986.

2. The prosecution case in brief is that on 16‑7‑1986, Siraj Din, complainant, with his Hamzulf Allah Yar P.W. had come to Chak Subhan Shah at the house of Muhammad Fazil, deceased. On the night between 16/17‑7‑1986, all the three were sleeping outside the house of Muhammad Fazil, deceased, on the road side. At about 1‑00 a.m. on the shrieks of Muhammad Fazil, deceased, Siraj Din complainant and Allah Yar P.W. woke up and found Akbar Ali, respondent holding the arms of the deceased and Muhammad Hanif, respondent, ripping open the neck of the deceased with his knife.

3. Muhammad Ibrahim, Sub‑Inspector, who first conducted the investigation, found both Muhammad Hanif and Akbar Ali, respondents, to be guilty. The challan against the said accused was prepared for submission in Court. However, on 31‑8‑1986 the Superintendent of Police, Okara, directed Muhammad Siddique, Inspector/S.H.O., Gogera, to investigate the case, who found both the respondents innocent and one Bagh Ali and his son Muhammad Aslam to be the culprits involved in the crime. According to the statement of Muhammad Din Maulvi P.W., he had got up early in the morning to urinate, when he found both Bagh Ali and his son Muhammad Aslam standing by the deceased's cot. In the morning when he came to know that Muhammad Fazil, deceased, had been murdered, he inquired from Bagh Ali as to what had transpired when the said Bagh Ali told him that he had murdered the deceased and that he should keep quiet, as he wanted to foist the case on his step‑brothers Muhammad Hanif and Akbar Ali, respondents. Apart from the statement of Muhammad Din Maulvi P.W. recorded under section 161, Cr.P.C., no further statement of any witness was recorded, but cryptic statements relating to certain inquiries made by the police officer from witnesses, including one Abbas, Vice‑Chairman, Union Council, and one Muhammad Yar, Councillor, appear in the Zaminis. From the inquiry made from Abbas, Vice‑Chairman, it is recorded that he stated that both the accused were working at his thrasher, thrashing maize from 7‑00 p.m on 16‑7‑1986 to 7‑00 a.m. on 17‑7‑1986 and from the inquiry from Muhammad Yar, Councillor, it is recorded that when he went in the morning to the place of occurrence, Siraj Din, complainant, and Ahmad Yar P.W. were not in the village, but came later.

4. I have heard the arguments of the learned counsel for the petitioner, the respondents and the State and have perused the police record. The statements of Siraj Din, complainant, and Allah Yar P.W. clearly involve the two respondents in the crime in instance. The first Investigating Officer, namely. Muhammad Aslam, S.I. clearly found both the respondents guilty of the offences imputed to them. The investigation of Muhammad Siddique, Inspector, Gogera, was inclusive. He only recorded the statement of Muhammad Din Maulvi under section 161, Cr.P.C. He did not record the statements of Abbas, Vice‑Chairman, Union Council, and Muhammad Yar, Councillor, under section 161, Cr.P.C. Both the respondents were the employees of Abbas, Vice‑Chairman, Union Council. The circumstances in which the investigation was transferred to the S.H.O., Gogera, leaves much to be desired. However, without going on the record as having given any finding in the matter, I would only say, for the limited purposes of this petition, that at least Muhammad Hanif, respondent appears to be reasonably guilty of the offence imputed to him. Since Muhammad Hanif, respondent No. 2, is imputed the fatal knife injury, the order granting him bail appears to be illegal and improper. So far as Akbar Ali, respondent, is concerned, it is alleged that he caught hold of the arms of the deceased to facilitate his brother to commit the crime in instance, but since Muhammad Fazil, deceased, was sleeping, the question whether any 'necessity arose for Akbar Ali to hold the arms, is one which calls for further inquiry. In the special circumstances of the case, I would not interfere in the order so far as Akbar Ali, respondent, is concerned.

5. For the foregoing reasons, this petition is partly accepted and the bail granted to Muhammad Hanif, respondent No. 1, by the Additional Sessions Judge, Okara, on 28‑12‑1986, is cancelled. He shall be taken into custody.

S.G.D./S‑15/L Order accordingly.

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