This is a petition for cancellation of bail by Fateh. Khan complainant against Mansab Khan and Sher Samand accused who alongwith Gola and Abdur Rehman's have been charged for the intentional murder of Ghulam Muhammad. The prosecution case in brief is that Mansab accused suspected Ghulam Muhammad of having illicit relations with his sister Mst. Sahibzadi. On 22-6- 1.985, at about sun-set time, Fateh Khan complainant was present at his house alongwith his nephew Ghulam Muhammad deceased. In -the meanwhile, Mansab Khan accused came there, called Ghulam Muhammad and took him away. A short while thereafter, Fateh Khan complainant, on hearing alarm rushed out of his house. He saw Mansab Khan armed with sword, Sher Samand armed with hatchet, Gola armed with knife and Abdur Rehman's armed with a Toka encircling Ghulam Muhammad deceased. Mansab gave a blow with his sword on the neck of Ghulam Muhammad. Sher Samand gave hatchet on the neck of Ghulam Muhammad who fell down.
'Thereafter, Abdur Rehman's gave Toka blow on the forehead of Ghulam Muhammad. Mansab gave another sword blow on the mouth of the deceased. Gola accused gave knife blow on the upper arm of Ghulam Muhammad. Thereafter, all the accused gave more injuries with their respective weapons on the person of the deceased. The occurrence was witnessed by Sultan,'
Muhammad Yousaf, Fareed and Muhammad Alt besides the complainant. After inflicting injuries on the person of Ghulam Muhammad deceased the accused lifted him and took him towards their house. The accused were arrested. Gola and Abdur Rehman's accused were found innocent by the police and they are on bail. The two respondents namely Mansab Khan and Sher Samand were allowed bail by learned Sessions Judge, Khushab vide impugned order, dated 12-11-1985 on the grounds firstly, that Mansab Khan accused, during investigation, pleaded that he had acted under grave and sudden provocation and also in defence of his person; secondly, that Mansab Khan accused was got medically examined by the police. He was found to be having three injuries by sharp-edged weapon on his person; thirdly, the prosecution story and the defence version of the case are found in the same melting pot which fact signifies a case of further inquiry against the two accused-respondents.
2. I have heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the two accused-respondents. I have also examined the record of the case.
At the time of arrest on 27-6-1985, Mansab Khan accused was found to have three sharp-edged weapon injuries on his person. He was medically examined. The Medical Officer found three injuries on his index, middle and ring fingers. No other injury was found on his person. The accused appeared before the police five days after the occurrence. It was argued by the learned counsel for the respondents that besides the grounds which weighed in the mind of learned Sessions Judge for allowing bail to the accused, they were entitled to remain on bail firstly because two co- accused of the present respondents were found innocent by the police; and secondly, the injuries on the person of Mansab accused. Have not been explained by the .Prosecution. The fact that Abdur Rehman's and Gola accused were found innocent would not mean that Mansab Khan and Sher Samand accused were also innocent or that they were entitled to bail for that reason. Their case has to be judged independent of the case of their two co-accused. It is correct that the injuries on three finger of Mansab accused have not been explained ' by the prosecution in' the F.I.R.
But this fact would not make out their case to be that of further inquiry. Mansab Khan accused appeared before the police five days after .The occurrence. He was armed with a sword. It is not the case of the prosecution that he was injured during the occurrence. As such; the absence of any 'mention of these injuries by the prosecution witnesses will be considered by the trial Court after recording of evidence keeping in view all the facts and circumstances of the case. These two grounds can, therefore, not be considered to justify grant, of bail to the two respondents. It was conceded by the learned counsel for the accused-respondents that the occurrence took place near the house of Khudayar. I have seen the site plan prepared during investigation of this case. It indicates that blood-stained earth was collected from the place of occurrence which was about 22 feet from the house of Khudayar. The dead body was found lying at a place about 119 feet from the above-said place. Blood-stained earth from this place was also collected by the Investigating Officer. I inquired from the learned counsel for the accused-respondents as to in what circumstances the dead body of Ghulam Muhammad was found lying near the house of Mansab accused particularly when it was pleaded by Mansab Khan that he had killed Ghulam Muhammad near the house of Khudayar under grave and sudden provocation. The learned counsel was not able to offer any explanation for that. I have gone through the impugned order, dated 12-11-1985. It indicates that Mansab Khan accused was allowed bail because he had taken up the plea of I grave and sudden provocation during investigation of the case. Mere' fact that a particular defence plea was set up by the accused during investigation did not justify bail in a case of this nature where the accused were named in the F.I.R. And were attributed specific injuries to the deceased. The learned. Sessions Judge did not give any reason to allow bail to Sher Samand accused in the impugned order. I am of the view that the learned Sessions Judge did not exercise his discretion properly in allowing bail to the two accused-respondents. It was wrongly held by him that the case of Mansab Khan and Sher Samad accused was that of further inquiry. As held in Arbab Ali v. Khamiso and others 1985 SCMR 195, a case can be held to be that of further inquiry only if "the Court at any stage of investigation, inquiry or trial, as the case may be comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed at non-bailable offence. Without this finding bail cannot be allowed under subsection
(2) on the ground that there are sufficient grounds for further inquiry."
3. As a result of the above discussion, this petition is accepted. The order of learned Sessions Judge, Khushab, dated 12-11-1985 allowing bail to Mansab Khan and Sher Samand is set aside and the bail allowed to them is cancelled. The accused-respondents shall surrender.