1973 PLP 217 (SCMR)

ANWARUL HAQ, J.‑This petition for special leave to appeal is directed against an order made by a learned Judge of the Peshawar High Court on the 20th of November 1972, whereby petitioners prayer for bail was refused. The petitioner as well as the, deceased Ghulam Dastagir were brothers. The co‑accused, Zahur‑ul‑Hassan, is their third brother. It is alleged that on the gist of August 1972, at about 11‑30 a.m., the petitioner and his brother Zahur‑ul‑Hassan fired at and killed Ghulam Dastagir owing to the reason that he had objected to their ploughing some land and cutting trees there. from, as the property belonged to the deceased. The death was reported at Police Station Sadar, Peshawar at 1-30 p.m. by the, widow of the deceased. At 12‑30 p.m. the same day the petitioner had also lodged an F. I. R. at the same Police Station alleging that his brother Ghulam Dastagir had fired six shots at him from his pistol, while he was cultivating his land comprising in Khasra 'Nos. 356 and

357. He added that he had also fired at Ghulam Destagir in self-defence and at the time Ghulam Dastegir s helper Mustaqim, was also present. He further stated that there was a dispute about land and the matter had been decided right up to the High Court under section 145 of the Code of Criminal Procedure. Bail was allowed to the petitioner by a learned Magistrate, but the same was cancelled by the Sessions Court. As already stated, the High Court refused to enlarge the petitioner on bail, It is submitted by the learned counsel for the petitioner that from the material on the record in the shape of the two counter first information reports, as well as the presence of five injuries on the person of the petitioner, it appears that prima facie it is a case of the exercise of the right of private defence, and, therefore, the petitioner was entitled to bail. In support of his submissions, the learned counsel has referred us to Manzoor v. State (PLD1972SC81), Amir v, State (PLD1972SC277) and Abdul Rashid v. State (P L D 1972 S C 295). On behalf of the widow of the deceased Syed Masoom Shah, Advocate, has entered a caveat and has opposed the grant of bail to the petitioner on the ground that even though the petitioner had indeed lodged a counter F.

1. R. one hour earlier than the report made by the window of the deceased, and even though he had suffered several injuries, yet it was significant that the pistol found on the dead body of the deceased had not been used at all. and prima facie this circumstance would seem to negative the assertion of the petitioner that be had fired at the deceased in self‑defence. It is correct that in the authorities referred to by Sh. Mohammad Shag, this Court has laid down the principle that bail is not to be with held as a punishment, and that for the purpose of deciding this question the Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused persons with the crime alleged against them. Now, in the present case the material available includes the important circumstance that although the petitioner alleges that he was first fired upon by his deceased brother, and he reacted only in self‑defence, yet the weapon recovered from the dead body of the deceased was found not to have been used. Prima facie, therefore, it is not possible to accept on the available material, the assertion of the petitioner that he had acted in self‑defence. On the other hand, there is the assertion by the widow of the deceased that in her presence the petitioner and his brother Zahur‑ul‑Hassan had both fired at the deceased. In this state of the record, it is not possible for us to take the view that there are no reasonable grounds for believing that the petitioner is guilty of au offence punishable with death or transportation for life. As a result, this petition fails and is hereby dismissed. The interim bail allowed to the petitioner on the 15th of December 1972 is cancelled and it is directed that the petitioner shall be taken into custody forthwith and committed to the judicial lock‑up during the pendency of the proceedings against him. It would, however, be open to the learned Magistrate concerned to consider the question of bail afresh in the light of the evidence which may be brought on the accord during the enquiry proceedings. Leave refused.