1978 PLP 360 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑The petitioners (1) Taj Din, (2) Khushi Muhammad, and (3) Akbar Ali are involved in a case under section 302/34, P. P. C. for the murder of Mukhtar Ahmad. The occurrence in this case took place on 19th of September, 1976 at 1‑30 p.m. within the limits of Police Station, Chunian and F. I. R. about the same was lodged on the same day at 3.35 .m. by Muhammad Ismail son of Muhammad Hussain (complainant. According to the F. I. R. the complainant and his maternal nephew Mukhtar Ahmad, deceased were standing at Pattoki Road for going to Chunian when the three petitioners alongwith one Nazeer son of Muhammad Sharif came on the spot armed with sofas. Nazeer son of Muhammad Sharif caught hold of Mukhtar and the petitioners allegedly inflicted soata blows on the deceased. The occurence was alleged to have been witnessed by Asghar and Muhammad Amin. Mukhtar Ahmad succumbed to the injuries and later on died. Nazeer accused was released on bail but it is stated by the learned counsel that he was thereafter murdered.

2. The petitioners applied for bail but their application was rejected by the Sessions Judge, Kasur on 10‑1‑1978. Thereafter they filed Criminal Miscell aneous Application No. 249‑B/78 which was dismissed by a learned Single Judge of the Lahore High Court on 1‑4‑1978. The High Court took the view that the petitioners were armed with sotas and specific overt act has been attributed to each of them, in that each of them gave sota below or blows to the deceased. It was brought to the notice of the learned Single Judge that the police reports did not support the prosecution case but the learned Single Judge ignored that aspect of the matter observing that the police reports were not binding on the Court. The petitioners have come up in a petition for special leave to appeal against the same. The case came up before us on 25‑5‑1978 when we issued notice to the State.

3. Learned counsel for the petitioners has argued that there were two eye‑witnesses in the case namely Asghar who was nephew of deceased and Amin who allegedly were present on the spot as is stated in the F. I. R. Bothl of them however have not supported the prosecution case vis‑a‑vis Kushi Muhammad and Akbar petitioners. It has been brought to our notice that inquiry and investigation was held by various police officers. Two police officers supported the prosecution case whereas a similar number of police officers including the one who submitted the last challan report under section 173, Cr. P. C. on the basis of which the case was sent to the Court observed that the two petitioners, Khushi Muhammad and Akbar have been falsely implicated. They were accordingly placed in challan in column No. 2 whereas Taj Din petitioner was placed in column No.

3. From what has been stated above it will appear that the case is essentially of a nature where there is a scope for further inquiry and the eye‑witnesses have not supported the prosecution case. The order of the learned Single Judge, thus suffers from apparent error in not appreciating these aspects and not attaching due importance to the relevant legal principle applicable to a case suffering from controversial prosecution versions of the nature described above. In view of the facts highlighted above, we are of the view that Khushi Muhammad and Akbar ought to have been released on bail. We, therefore, allow their petition for special leave and convert it into an appeal. In accepting the appeal of Khushi Muhammad and Akbar alias Akku they are allowed bail in the sum of Rs. 5,000 (Rs. Five thousand) each with one surety in the like amount to the satisfaction of Assistant Commissioner, Chunian. So far as Taj Din is concerned, as his case is different and during the course of investigation incriminating material has been found against him, his petition for leave has no merit and is rejected. A short order was accordingly announced by us on 1‑6‑1978 and the present judgment provides the detailed reasons therefore. Order as accordingly.