NASIM HASAN SHAH, J.-This petition is directed against the order of the Lahore High Court dated 29-8-1977, whereby the bail allowed to the petitioner by the Additional Sessions Judge, Lahore, on 20-4-1977 was cancelled.
2. The facts of the case, according to the prosecution, are that on the night of 30th December, 1977, the petitioner, his wife Mst. Samina Bilqis and his brother Amjad Yusuf left Lahore at 10-15 p.m. By a car for Kasur after allegedly collecting the service card which the petitioner had forgotten at Lahore. When the party had passed Kahna and gone four miles ahead of it, the petitioner stopped his car and told his brother that the brakes were not functioning as the brake-oil had leaked out and sent him back to Lahore to bring it. When the petitioner's brother returned to the spot, with tire brake-- oil, where the car was stopped, he found that the wife of the petitioner was lying in the seat next to the driver's seat in an injured condition and that her head was bleeding. However, he did not see his brother (petitioner) anywhere near the car. He thereupon left for Police Station, Kahna and reported the matter to the Police and got a case under section 307, P. P. C registered with it.
3. In pursuance of this information the Police Party went to the place of occurrence and found Msr.
Samina Bilqis in sitting posture in the seat neat to the driver's seat. It also found the petitioner lying on the ground near the car in an injured condition. Mst. Se4ie Bilqis and the petitioner were removed to the hospital in a truck, but Mst. Samina Bilqis expired before reaching the hospital. The petitioner was given medical aid and subsequently his statement was recorded. His version of the incident, as reproduced in the judgment of the High Court, was that after his brother had left, both he and his wife were sitting in the car waiting for his return when a shot was fired from the side where his wife was sitting aid she fell in his lap. He opened the door of the car and walked towards the side from where the shot had come and noticed two persons. He went after them and caught hold of one of them, but was given beating by a ---danda--- as a result of which he received injuries on his head. The other person went towards the car, searched the brief-case and removed cash amounting to Rs. 2,000. In the meanwhile the assailants noticed some light from the main road and after injuring him disappeared in the darkness. He fell on the ground as a result of the injuries. The assailants even tried to fire at him, but the weapon (which according to the petitioner was a pistol) did not work.
4. On investigation by the Police the above version was not found to be correct. On the other hand, the Police came to the conclusion that Mst, Samina Bilqis had actually been murdered by the petitioner himself. Accordingly the petitioner was arrested on 4-1-1971 by the police for the murder of his wife.
5. The petitioner applied for bail arid on 20-4-1977 the learned Additional Sessions Judge ordered his release on bail. The brother of the deceased (Dr. Sakhi Mohammad Bhutta) moved the Lahore High Court for the cancellation of the bail order. The High Court by an elaborate order dated 29-8- 1977, after discussing the various pieces of circumstantial evidence, cancelled the order of bail passed by the learned Additional Sessions Judge, observing that it was neither proper nor in accordance with law to pick a few pieces of evidence from here and there acid allow bail. A direction was accordingly issued that the petitioner be taken into custody forthwith. Hence this petition.
6. Sh. Shaukat A.I, learned counsel for the petitioner, has submitted that the learned Judge in the High Court had wrongly exercised his discretion in cancelling the ball of the petitioner. He pointed out, firstly, that the petitioner had no motive for murdering his wife, secondly, the version of the petitioner that his car had gone out of order was quite plausible because the car was of 1964/65 Model and could have gone out of order and stopped for the reason stated by the petitioner, thirdly, no reliance could be placed on the recovery of the pistol which was allegedly made at the instance of the petitioner and that the p1stol was planted on him by the Police. In support of the last mentioned contention he relied upon two circumstances firstly, that the pistol which was allegedly used for the commission of the murder was found some four kilometres away from the place of occurrence and it was extremely unlikely that the petitioner should have sore to such a distance for throwing it away, and, secondly, that the two witnesses to the recovery of the pistol had sworn affidavits (which were shown to us) to the effect that in fact no recovery of pistol was effected from the petitioner in their presence and their thumb impressions are produced on the recovery memos on the pretext of establishing their identity. Fourthly that the medical evidence contradicted the prosecution version as to tire distance from which the petitioner had allegedly shot at the deceased. No blackening or charring marks around the entry wound on the body of the deceased were found and this was indicative of the fact that the fatal shot or shots were fired from some distance and not from two or three feet as alleged by the prosecution. Finally it was submitted that in view of the provisions contained in section 59(2) of the Army Act, 1952, the petitioner could not be taken into custody by the police without the permission of the Officer Commanding of his Unit.
Learned counsel also submitted that although according to the prosecution version the Mechanic who inspected the spot and checked the brakes had opined that no brake-oil had leaked out, bat this circumstance was not by itself sufficient for refusing the bail. The submission was that the only incriminating circumstance militating against the petitioner was the stoppage of the car at the spot in question which was not necessary according to the Mechanic, as no brake-oil had leaked out and the brakes were functioning, but this solitary circumstance was not entitled to much weight if considered in the background of all the circumstances noticed above. Hence the petitioner was entitled to be admitted to bail.
7. In reply, Mr. M. B. Zaman, learned counsel for the complainant submitted that the version of the petitioner could not be believed for the reasons, Inter alia, (i) the real brother of the petitioner contradicted the petitioner's version, in that he had stated in the F. I. R. That when he returned to the place of occurrence with the brake-oil, he saw the petitioner's wife in the car m an unconscious condition, but did not see the petitioner anywhere near the car. It was only after he had left for the Police Station to lodge the F.I. R. That the petitioner had returned to the spot and inflicted injuries upon himself in order to make the occurrence appear as if it was a case of some unknown assailants shooting at his wife and also giving him beating (ii) the Police found no foot-prints near the place of occurrence of anybody except those of the petitioner.
8. As for the argument that there was no blackening or charring, he submitted that this would not occur unless the pistol was fired from a very close range. In this case the petitioner may have fired from some distance. He also relied on the statement of the Mechanic to argue that the entire story of the brakes having gone out of order owing to the leakage of the brake-oil was false and that this stratagem has been resorted to by the petitioner only to send his brother away. He also referred to the fact that the Police had recovered some blood-stained gold bangles scattered in the car. The submis--sion was that if the act was committed by some robbers, they would not have left the gold bangles in the car.
9. After hearing the learned counsel for the parties at some length we are of the view that the learned Judge in the High Court has not exercised his discretion illegally or improperly. The reason for stopping the car at a lonely place in the dead of the night on the excuse that the brakes had failed is not convincing; rather if the brakes were not in fact functioning properly it in sight have been safer to drive the car slowly towards Kasur instead of sending Amjad Yusuf (petitioner's brother) back to Lahore to fetch some brake-oil. Be as it ray, the investigation has collected some evidence which, if not rebutted, can form the basis of conviction of the petitioner and cannot, therefore, be argued that there exist no reasonable grounds for, believing that the petitioner is guilty of the offence of which he has been accused.
10. So far as the submission that the petitioner could not have been taken into custody on account of the provisions of section 59 of the Army Act is concerned, we find no substance in it. Section 59(2) of the Army Act lays down that a person subject to this Act who commits an offence of murder, against a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be dealt with under this Act unless he commits the said offence while on active service. The counsel for the peti--tioner could not satisfy us that the petitioner was on active service while the alleged offence was committed.
11. The upshot is that no case for interference with the order passed by the Lahore High Court, whereby the bail of the petitioner was cancelled, is made out. This petition is accordingly dismissed.