1977 P Cr (PLP)

Criminal Procedure Code (V of 1898)_ ‑‑ S. 497(5)‑Bail, cancellation of‑Supreme Court granting leave to appeal in case of acquitted co‑accused and case of petitioner prima facie identical to that of cc‑‑accused‑‑Trial of petitioner yet to be held as he had been an absconder and only surrender; d voluntarily after his co‑accused was acquitted by High Court‑Bail allowed earlier cancelled, in circumstances. [Bail]. A. K. Mian for Petitioner. Ziaud Din Khan for Respondents. Date of hearing: 12th September 1977. This is a petition for cancellation of bail alloyed by me to respondent Sultan Sikandar vide my order dated 19‑1‑1977 in, Criminal Miscellaneous No. 4532/B of 1976. The background of this case is that the co‑accused of the present respondent, namely, Muhammad Iqbal, Ghulam Akbar, Baz Khan, Muhammad Khan rind Asif Khans, went tried by the Sessions Judge, Jhelum for offences under section 302/148/ 149, P. P. C. The respondent, however, became an absconder. The trial Court convicted Muhammad Iqbal and Ghulam 1,.kb:r and sentenced them to death but he acquitted Baz Khan, Muhammad Khan and As" Khan. The convicts Muhammad lqbal and Ghulam Akbar filed Criminal Appeal No. 82 of 1974/Murder Reference No. 14 of 1974 before the High Court and the High Court while giving the benefit of doubt to both of them acquitted them. Thereafter, the respondent is stated to have surren4erer: himself voluntarily on the 6th of September 1975. a :ifs admitted to bail by the Magistrate, but the Sessions Judge cancelled be bail Thereafter, he moved a petition for bail in this Court which was allowed by me as bas been mentioned above. The present cancellation of bail petition has been moved for the reason that their Lordships of the Supreme Court in Criminal Petition for Special Leave to Appeal No. 104 of 19;15 have granted leave to appeal in the case of Ghulam Akbar co‑accused of the present respondent vide order dated the 9th of February 1976. It is mentioned in the aforesaid order of the Supreme Court that according the prosecution Sher Khan deceased was hit by the present respondent acid Ghulam Akbar: It was argued before the Supreme Court that Sultan Sikandar respondent and Ghulam Akbar were armed with rifles and they coup be safely attributed the injuries caused to Sher Khan deceased; It was also contended that Nawab Khan P. W. 15 was a disinterested witness and further that the ocular testimony stood corroborated by the recovery of millet seeds from the spot. Learned counsel for the respondent has submitted before me that the present respondent had not been tried along with the co‑accused and that in the background of the judgments of the trial Court and the High Court in this case, his case needed further inquiry and consequently tie was entitled to remain on bail. It is also submitted that Nawab Khan P. W. 15 was the sworn enemy of the respondent and this was borne out from the record. It was further contended that my previous order allowing bail to the respondent was based on sound reasons and, therefore, it could not be interfered with. I have heard learned counsel for both the parties carefully. When I allowed hail to the respondent, the main consideration which was before me was that even those co‑accused of the respondent; namely, Muhammad lqbal and Ghulam Akbar, who had been convicted and sentenced to death by the trial Court were eventually given the benefit of doubt and acquitted by the High Court and that since the respondent was not a party to that trial an i further that since all the co‑accused bad b=en acquitted because the evidence in this case had not been relied upon, there were grounds to believe that the respondent might have not been guilty of an offence the punishment of which could be death or imprisonment for life. In any case, now the position is different. The Supreme Court hag granted leave to appeal in the case of Ghulam Akbar, who yeas armed with a rifle. Sultan Sikandar respondent i, also states to be armed with a knife and in that view of the matter, his case prima facie is identical to that of Ghulam Akbar. In any case, his trial has yet to be held as he had been an absconder and only appeared in order to surrender voluntarily after his co‑accused were acquitted by the High Court. In my view, in the light of these two considerations, it would be proper to cancel the bail allowed to the respondent by me earlier at this stage. The result is that this petition is accepted. The bail allowed Sultan Sikandar respondent is hereby cancelled. The respondent should, therefore, immediately surrender himself to the police, which should re‑arrest him. Petition allowed.