' Having been accused of the murder of one Shahid Inayat, through F.I.R. No,43, dated 15-2-1992 of Police Station Narang, District Sheikhupura, three respondents herein had been admitted to bail by a learned Additional Sessions Judge, Sheikhupura on 30-5-1991 primarily on the ground that there was a delay of more than four hours in the registration of the case; that in the investigation conducted by different Police Officers, the prosecution story had been found to be untrue; that the scrutiny of the record had proved, at least prima facie, that the opinion of the I.Os. Was not entirely unwarranted; that Aslam and Afzal accused had only been attributed the role of holding the deceased while Yousaf accused was the one who had fired a shot; that the report of the Technical Services of Crimes Branch, prima facie, showed that the shot had been fired from a long distance; that the cumulative effect of all these facts justified a reasonable ground for belief that the involvement of all the three above-mentioned accused persons was open to further inquiry.
2. On a petition made by the complainant before the learned Additional Sessions Judge, the recall of the bail allowed to these three accused persons was refused on 21-7-1992. It may be mentioned here that prior to moving the learned Additional Sessions Judge for cancellation of bail, Ghulam Ali complainant had approached this Court for the said purpose through Criminal Miscellaneous No3655/CB of 1991. I had dismissed the said cancellation of bail petition to the extent of Aslam and Afzal accused-respondents and had permitted the petitioner to withdraw the petition with respect to Yousaf accused when he had made a prayer for the said purpose and I had further allowed him to approach this Court afresh for the same purpose after the re investigation of the case which was then in progress had offered any ground warranting such a relief.
3. In view of my earlier refusal to cancel the bail allowed to Aslam and Afzal respondents, the learned counsel for the petitioner prays for permission to withdraw this petition to their extent. He has, however, pressed for the recall of the bail allowed to Yousaf respondent.
4. The learned counsel appearing for the petitioner, Yousaf respondent and the State have been heard
5. The learned counsel for the respondents submitted that in the earlier investigations it had been found that the prosecution story was false and that Yousaf respondent had, in any case, not participated in the occurrence in question at the relevant time because he was away in his fields.
He further submitted that it was the claim of the three accused persons that Shahid deceased had some differences with his family; that he came to the house of the accused persons armed with a licensed gun of his real uncle; that he fired a shot in the air with the said gun and thereafter fired a shot in his belly and fell dead in front of their house. The learned counsel for the respondents admits that even the earlier I.Os. Had not agreed entirely with this version of the accused party and the I.Os, were of the, view that Shahid deceased had either committed suicide as claimed by the accused persons or the licensed gun of his real uncle with which Shahid deceased was allegedly armed had got fired -during the course of the struggle which had ensued between Aslam and Afzal accused and the deceased after he had come to their house resulting in the death of the said deceased or that Afzal accused might have snatched the said gun from Shahid deceased and might well have fired with the same at the said deceased in self-defence and thus the case was made out only against Afzal accused but that also of an offence of culpable homicide not amounting to murder. If such be the findings of various I.Os., as has ,been asserted by the learned counsel for the respondents, then the same are as absurd as the plea of the accused persons.
6. It is not possible for any person to fire a shot in his belly with a .12 bore gun which he may be holding and in any case it is not understandable as to why the deceased would go all the way to the house of the accused persons to commit suicide in a street and that also after having fired a shot in the air. It is equally unbelievable that an injury could have been caused on the abdomen of the deceased while the deceased was engaged in grappling with another person because the length of the barrel would squarely stand in the way of the causing of such an injury. The third possibility offered by the earlier I.Os. As claimed and owned by the learned counsel for the respondents that Shahid deceased had been done to death through the above-mentioned gun after Afzal accused had disarmed the deceased of the same is also not tenable as the same at least, prima facie, would again constitute an offence of murder and not of culpable homicide not amounting to murder because if Afzal accused had disarmed the deceased then no right existed in him to shoot the deceased to death.
7. The above-mentioned opinion of various I.Os. Is even otherwise conjectural because the learned counsel for the respondents admits and so is evident even from the record that the I.Os. Had opined that it was the gun of an uncle of the deceased which had been used in the occurrence in question but it had never been recovered by any of these I.Os. In spite of the fact that it was a licensed gun of an identified person.
8. Nothing exists on record except a word of mouth that Yousaf respondent was not present at the place of occurrece at the relevant time and was away doing work in his fields. Such a material is not enough to create sufficient dent in the prosecution claim that Yousaf respondent was the one who had fired the shot which had killed the deceased.
9. It may be mentioned here that as per the final investigation conducted by the Crimes Branch, all the three accused persons had been found guilty and have since been challaned. Yousaf accused was the one who was saddled with the fatal injury. Nothing exists on record which could, at least, for the present, demonstrate any motive on the part of the complainant to falsely or maliciously implicate the said Yousaf accused in the occurrence in question.
10. The discretion, in the circumstances, exercised by the learned Additional Sessions Judge allowing bail to Yousaf respondent was thus an arbitrary exercise of powers not justifiable in the facts of the case. Therefore, the bail allowed to Yousaf respondent by the learned Additional Sessions Judge of Sheikhupura is recalled. This petition to the extent of Aslam and Afzal is dismissed as withdrawn.