1990 PLP 263 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This petition for leave to appeal is directed; against the grant of bail by the High Court in a murder case. The facts stated in this petition (P‑iii) as basis for challenging the High Court Order are as follows:‑ "The prosecution case is that regarding an Ehata, there was a civil suit between Saiful Malook accused and Khalid Mahmood of the complainant party. That suit was decided in favour of Khalid Mahmood on 21‑12‑1988. On that day of occurrence, Khalid Mahmood etc. started raising construction on the land of the Ehata. Saiful Malook etc. prevented them from doing so. (Prosecution case briefly). "That on 24‑12‑1988 at 10‑00 a.m. when the complainant accompained by the deceased person and PWs reached at the place of occurrence to ask the accused persons to allow Khalid Mahmood etc. to raise construction in accordance with Court Order. At that time, Saiful Malook, Zia‑ur Rehman, Atiq‑ur‑Rehman, Taufiq‑ur‑Rehman, Abdul Wahab and Javed were present at the Ehata. As the complainant party reached at the spot, Saif‑ul‑Malook etc. raised lalkara that Abdul Waheed and Mohammad Adam should be killed. Zia‑ur‑Rehman and Saiful Malook brought guns from their houses. Saiful Malook fired which hit Abdul Waheed and the fire of Zia‑ur‑Rehman hit Mohammad Aslam. Zia‑ur‑Rehman fired second shot hitting Zahid Mahmood in head. Abdul Wahab hurled brick bat at Tahir Mahmood (PW) hitting him on forehead. "The incident, it was added, was the result of consultation between the respondents and their co‑accused." (Underlining is ours). It would be seen that the only basis alleged for cancellation of bail is that the occurrence had taken place as a result of consultation between the respondents and their co‑accused. The learned Judges in the High Court took note of the allegation of conspiracy against the respondents and the argument from their side that it was an after thought, as the same was not in the F.I.R. Other arguments from both sides were also noticed and the, prima‑facie, tentative opinion was expressed as follows:‑‑ "As to the credibility of Ehsan‑ui‑Haq and Arshad (PWs), it suffices to say that admittedly there is a party‑faction in the village. Their names did not find mention in the F.I.R., nor was the story relating to alleged conspiracy mentioned therein." Accordingly treating the case as one falling under subsection (2) of section 497, Cr. P. C., bail was allowed to the respondents. After hearing learned counsel on merits regarding tentative findings, we do not consider it a fit case to hold that it did not fall under subsection (2) of section 497, Cr. P.C. However, in the circumstances of the case the prayer made by the learned counsel for the clarification, that the tentative findings by the High Court and the further finding that the case fell within subsection (2) of section 497 Cr.P.C., would not influence the mind of the learned trial Judge, during the trial, when hearing and deciding the case on merits, is allowed. With the foregoing observation this petition is dismissed. N.H.Q./S‑478/S Petition dismissed.