1985 PLP 119 (SCMR)

SHAFIUR RAHMAN, J.--By two separate petitions the four accused whose bail was cancelled by the Peshawar High Court by an order dated 7-10-1984 seek leave to appeal against the order. The deceased Riaz Muhammad was a partner in business with the four petitioners and he disappeared on the night between 13-14/11/ 1983. His father made a search and was able to find that his dead body was lying in the Balakhana of Abdur Rashid petitioner. He had been slaughtered there. He made further inquiries and on-the basis of the information gathered by him, he lodged a report at the Police Station, Budabher on the 14th of November, 1983 at 8-30 p.m. charging the petitioners for the murder. The motive given out was that the petitioners owed the deceased certain money and they wanted to appropriate it by getting rid of him. In due course, the petitioners were arrested but petitioner Abdul Wahid Khan was admitted to bail by the Sessions Judge on 30-11-1983 and the other petitioners on 7-1-1984. Applications were moved for getting their bail cancelled which was done by the impugned order by the High Court. The learned counsel for the petitioners contended that in view of the circumstantial evidence on the record and the material collected, the Additional Sessions Judge had granted bail holding it to be a case of further inquiry. Unless some misdirection or obvious error existed, it was not open to the High Court to interfere in such a matter simply because another view was possible or could be taken. In support of his contention, the learned counsel for the petitioner referred to the observations made by this Court in Falak Sher v. The State 1979 SCMR

103. Without going into the merits of the case, we find that, as observed by both the Courts, it was a case of circumstantial evidence. The motive part was confined to an entry in the diary showing that Abdur Rashid owed Rs.55,183 to the deceased and Fazal Hamid Rs.640. The partnership between them also existed. The dead body was found in the Balakhana belonging to Abdur Rashid though it was used, it is said, as a Baithak. The recovery of the tape-recorder belonging to the deceased allegedly took place from the shop of Abdur Rashid. In the circumstances, the view taken by the Additional Sessions Judge with regard to the implication of petitioners other than Abdur Rashid was not liable on merits to interference by the High Court. In treating Abdur Rashid on the same plan as others, the Sessions Judge it appears, omitted to note that the premises from where the dead body was recovered was allegedly in his effective possession and was kept under lock and key. Advocate-General had been given notice in these petitions and State Counsel has been heard. We convert the petitions of Wahid, Fazal Hamid and Mir Alam into appeals and restore the order of the admission to bail as was passed by the Sessions Judge but in respect of Abdur Rashid, leave to appeal is refused and the order of the High Court cancelling the bail is maintained. M. Z. M. Order accordingly