1983 PLP 199 (SCMR)

SHAFI‑UR‑REHMAN, J.‑The petitioners, four in number, accused of offences under section 302/307/149/148, P. P. C. along-with certain others, seek leave to appeal against the order of the Lahore High Court dated 13‑6‑1982 whereby the bail granted to them by the learned Additional Sessions Judge, Gujrat, on 1‑3‑1982 was cancelled. The petitioners along-with others were directly charged in the F. I. R. for having caused the death of one Taja and injuries to Anwar, Mushtaq and Arif. The occurrence had taken place on 12‑10‑1981. The complainant side had in all received 31 injuries. The learned Additional Sessions Judge, Gujrat, allowed them bail on account of the following reasons: (1) A cross‑case under sections 307, 148, 149, 325, P. P. C. was lodged by way of a complaint by Allah Ditta in respect of the same occurrence against the complainant party. There was, therefore, a counter‑version of the same occurrence requiring trial and adjudication. (2) On the petitioners' side Muhammad Khan, Muhammad Aslam and Muhammad Azam accused of the offence were injured. The prosecu tion has explained their injuries but the question whether these injuries were caused to them in defence of their persons or as an act of aggression required further inquiry. (3) Muhammad Khan, Mehdi Khan, Rehmat and Aslam were reported to have injured Anwar, Mushtaq and Arif P. Ws. "Neither of them attacked or gave any injury to Taja deceased." Their participation and sharing of the common object of the unlawful assembly was a matter for inquiry. (4) During investigation three of the petitioners were found by the A. S. P. on oath of certain persons to be innocent and have been placed in column No.

2. This order of granting bail to the petitioners and others was challenged in. the High Court. The learned Judge in the High Court examined at length the contentions of the parties and the material available on the record and came to the conclusion that there was a misreading of the record by the learned Additional Sessions Judge as Mehdi, Rehmat, Aslam etc. had also attacked and injured Taja deceased and it was so mentioned in the F. I. R, This was held by the High Court to be an observation "based on utter ignorance of the averments in the F. I. R. as specific roles of infliction of hatchets' blows etc. have been attributed to all of them as Regards the person of Taja deceased." The ground of counter‑version was found to be untenable for the purpose of admitting the petitioners to bail for the reason that the counter‑version had been brought forward two months after the occurrence by means of a complaint and not earlier and not in any other recognized manner. As regards the plea of non‑participation of some of the accused in the occurrence and the plea of alibi, the learned Judge in the High Court found that the number and nature of the injuries prima facie showed the participation of a large number of accused persons. The learned counsel for the petitioners contended that the learned Additional Sessions Judge had exercised the discretion in favour of the petitioners and in accordance with the law laid down by this Court it should not have been interfered with, particularly when the accused had been placed in column No. 2 and their participation in the occurrence was open to further inquiry. The counter‑version put forward by the petitioners and their associates as well as the injuries on the persons of some of them have been pleaded as good grounds for admitting them to bail. It is not denied that there was ignoring or misreading of a document in respect of the participation of the petitioners so far as the injuries t the deceased were concerned. It had a material bearing on the case. Wit such misreading or ignoring of the material being present on the record, it cannot be said that the discretion had been properly exercised and was not liable to interference. We are also not quite satisfied with the manner of investigation resulting in placing of some of the petitioners in column No. 2 as it is apparently based on oath administered to persons who were not witnesses in the case an who were not authorised by the parties but were picked up by the Investigating Officer on his own. The High Court having attended carefully and in detail to every aspect of the case, we do not consider it a fit case for grant of leave to appeal. The leave to appeal is therefore refused. Petition dismissed.