1998 PLP 356 (SCMR)

RAJA AFRASIAB KHAN, J.

On 15th of January 1996 at 5-00 p.m., a case under section 302/34/109 P.P.C. was registered on the statement of Sultan Ahmad with Police Station Wanbhachran, District Mianwali against Rafi Ullah, Muhammad Zaman and Shaft Ullah for the murder of Muhammad Ashraf. A learned Additional Sessions Judge, Mianwali vide his order dated 7-3-1996 accepted the bail petitions of Raft Ullah and Muhammad Zaman observing:-- "Although the fatal shot is attributed to Rafi Ullah but during the investigation it has been found that the shot was fired by his brother co-accused Shafi Ullah and not Raft Ullah petitioner and both these petitioners have been found innocent during three successive police investigations as mentioned above. Therefore, it cannot be said that reasonable ground exist to believe that the petitioners committed this occurrence. A case of further enquiry into their guilt is made out. Muhammad Zaman is father of the accused persons who was not present at the scene of occurrence. His involvement due to the mala fide of the complainant cannot be ruled out. In these circumstances, both the petitions are accepted. So far as Rafi Ullah petitioner is concerned he is directed to be released in after arrest bail petition and so far as Muhammad Zaman is concerned interim bail already allowed to him is hereby confirmed provided each of them furnishing bail bonds in the sum of Rs.1,00,000 (one lac) each with one surety and a bond each of the like amount to the satisfaction of this Court. " Criminal Miscellaneous No. 1986-B of 1996 was moved by Sultan Ahmad for cancellation of bail allowed to the accused. It has been heard and allowed by a learned Judge of the Lahore High Court vide his orde6 dated 2nd of October, 1996. This petition has been filed for leave to appeal.

2. Learned counsel argues that discretion has rightly been exercised by the learned trial Judge in granting bail to the accused. 3.The High Court vide its order dated .2-10-1996, observed:-- Contending that the impugned order granting bail to the respondent solely placing reliance on ipse dixit of the police being contrary to the averred facts promptly reporting the broad daylight occurrence explicitly ascribing the solitary fatal shot to the respondent by the deceased's father having no earthly reason to substitute the offender letting real culprit go escort free to whom the motive is also attracted especially whose named co-accused being brother and father respectively already stand bailed out is demonstrative of police connivances and has resulted into miscarriage of justice. Factum whereof is patently demonstrated by the record and remained un-dislodged by the learned counsel for the complainant as well as the State despite the specific query. Consequently, the impugned order to the extent of granting bail to Rafi Ullah respondent is hereby recalled. "

4. In view of the discretion having been rightly exercised by the High Court, we have not been persuaded to interfere in the matter. It is an occurrence of broad daylight which is alleged to have been seen by competent witnesses. The order of the High Court appears to be proper and as such, it is upheld. This petition is, therefore, dismissed by refusing leave to appeal. N.H.Q./R-3/S Leave refused.