1988 PLP 725 (MLD)

Ihsan, Sarwar, Hayat and Zafar respondents were allowed bail in a murder case by Sessions Judge, Gujrat vide order dated 22‑9‑1987 on the ground that a D.S.P. Police had found them innocent and that it needed further inquiry as to their guilt or innocence. The same Court, however, recalled this bail granting order on 24‑9‑1987 because that order was passed in the absence of the counsel for the complainant. Against this order respondents preferred revision (Criminal Revision No. 418 of 1987) which was allowed by me and as a result thereof the bail granting order automatically revived. In this background the petitioner has filed the instant application under section 497(5), Cr.P.C. praying that bail granted to the respondents by the Sessions Judge, Gujrat, vide order dated 22‑9 1987 be cancelled.

2. I have heard learned counsel for the petitioner as well as for the respondents and also perused the record.

3. According to prosecution Nasir Mahmud deceased had quarrelled with Shaukat accused. A few days later i.e., on the night between 26/27‑3‑1987 Zafar, respondent approached Nasir Mahmud at his house and took him to his place on some pretext. As Nasir Mahmud (deceased) did not return home for quite some time, therefore, the complainant (father of the deceased) alongwith Qadir went out in his search. They saw light in a room of the Dera of the respondents which was chained from within. They peeped through crevices of the door and saw the respondents alongwith Shaukat and Riaz accused causing injuries to the deceased with hatchets. They raised alarm, whereupon the respondents in order to attack them had chased them but they ran away. Taking other persons with them they again went to that Dera but the respondents as well as the deceased were not found there. Sadiq and Ata Muhammad P.Ws. told them that respondents armed with hatchets were seen by them going with Riaz who was carrying Gathari on his head. They, however, spotted dead body of Nasir Mahmud lying in a wheat field wrapped in a piece of cloth. The complainant lodged F.I.R. with Police Station Kunlah, District Gujrat. The police arrested the respondents and their co‑accused Shaukat and Riaz and recovered hatchets from them. Shaukat and Riaz were attributed specific injury on the neck of the deceased. As many as ten injuries were found by the doctor on the person of the deceased, caused with sharp‑edged weapon which proved fatal. During investigation the respondents pleaded innocence. The S.H.O. declared them innocent on the basis of certain affidavits filed by the villagers and recorded his findings in Zimni dated 20‑4‑1987. Abdul Majid Kiani, D.S.P., agreed with the S.H.O. vide his Zimni dated 2‑5‑1987. The matter was reinvestigated by D.S.P. Headquarter who found all the accused guilty vide his Zimni recorded on 10‑6‑1987.

4. It is contended that the S.H.O. had found the respondents as innocent without any valid basis. Learned counsel appearing on behalf of the respondents stated that as the Investigating Officer found the accused/respondents as innocent, therefore, they were entitled to the grant of bail as of right and that learned Sessions Judge, Gujrat, correctly exercised his discretion in favour of the respondents. It is well‑settled that at bail stage the Court is not called upon to conduct anything in the nature of preliminary trial to consider the probability of an accused's guilt or innocence. What is required is to ascertain as to whether there exists any reasonable ground for believing that the accused is guilty of the offence with which he is charged.

5. I have gone through the record carefully and I find that the respondents have been charged by all the P.Ws. for causing hatchet injuries to the deceased. The medical evidence supports it. The number of injuries found on dead body commensurate with the number of accused. No reliable evidence has been brought on record proving non‑participation of the respondents. The only ground on which respondents have been held innocent is that complainant party had at one stage agreed to get Nian (oath of innocence) from the respondents but had later resiled from their agreement. I am afraid this fact hardly constitutes good ground for holding the respondents as innocent. Considering the material so far brought on file, I am of the view that prima facie it furnishes reasonable ground to believe that they are guilty of the offence with which they are charged and as such the order of learned Sessions Judge granting bail to the respondents is not justifiable. Consequently, I cancel the bail granted to them. The respondents shall surrender before the Ilaqa Magistrate or be got arrested by him and committed to jail during the pendency of the trial. The petition is accepted in the terms indicated above. Bail cancelled.