' Ghulam Abbas petitioner has applied for the cancellation of bail allowed to Muzaffar Khan by the Additional Sessions Judge, Sargodha on 26-1-1977 in the murder case pending against the respondent and six others. The case was registered on 6-11-1976 at Police Station Katha Sagral, District Sargodha.
2. About 10/11 years before the occurrence in this case, Ghulam Mohammad son of Lal (accused) was murdered by Sharif (deceased in this case). Sharif was tried and acquitted about 5/6 years back. It is alleged that in order to avenge the murder of Ghulam Mohammad, his father Lal, uncle Sawal and their other relations, Mumtaz, Nawaz, Falak Sher, Dost Muhammad and Muzaffar respondent lay in ambush. When Sharif passed that way, Lal, Falak Sher, Nawaz, Dost Muhammad and Muzaffar accused fired at him with 12 bore guns which each accused had with him. Sharif was wounded in the chest ; he fell down ; just then Sawal placed his gun near his right ear and fired a shot. Similarly, Mumtaz placed his gun near his left ear and fired. Sharif died at the spot. Besides Ghulam Abbas (informant), the occurrence was witnessed by Muzaffar Khan and Noor Muhammad who were with the deceased at that time.
3. This petition was admitted to a regular hearing because the learned Additional Sessions Judge did not mention in the bail order whether he had considered the circumstances which led the police to place the respondent in column No,
2. The accused raised the plea of alibi ; even this is not mentioned in the bail order. What is mentioned is that it is a case of further inquiry because the police has placed the respondent in column No,
2. This is not enough. Order on bail application is not a matter of routine. It should be a speaking order. At the same time a deeper appreciation of the facts is not done at the bail stage. In cases which are under investingation or pending in Court awaiting trial, there are only the bare accusations against the accused and his plea, on the basis of these facts the question of bail is to be considered with due care and caution. If in a case the police has placed an accused in coloumn No, 2, it is for the Court to examine the matter on the basis of the data collected during investigation and then come to a conclusion whether reasonable grounds exist to connect the accused with the crime. It is not correct to depend on the WI dixtt of police regarding guilt or innocence of the accused.
4. During the investigation of this case the respondent took up the plea of alibi supported by a number of Advocates of his district alleging that the respondent was seen by them in the District Courts during working hours of the Courts ; one of the Advocates alleged that the respondent was with him till about 8-00 p. m. That day. The occurrence in this case allegedly took place at about Maghrib prayers' time about 40 miles away from the District Courts. According to the learned counsel for the petitioner even if the respondent was present in the District Courts during the day, he could still reach the place of occurrence at the time of commission of the crime. I have considered the matter. The plea of alibi turns on oral evidence which has to be tested at the touchstone of cross-examination and cannot be gone into deeper at this stage. However, there is another aspect of this case which needs to be considered i, e., the licensed gun of the respondent, recovered from him did not match with any of the crime empties found at the place of occurrence.
Moreover, a number of shots were said to have been fired at the deceased. This allegation is prima fade not consistent with the postmortem report. Admittedly, there is previous enmity between the parties. Taking these circumstances into consideration, I do not consider it a fit case for the cancellation of bail. No interference is called for on the allegation of harassment to the witnesses.
Affidavits have been filed by both sides. Moreover, no action has been taken by the police on the report made in this behalf. This petition is dismissed.