' Muhammad Sajjad and his sister's husband Muhammad Akbar are accused of the murder of Ghulam Sarwar. The case was registered against them on 24-6-1971. They were allowed bail by the Additional Sessions Judge, argodha on 5-4-1973. They were committed for trial on 11-7-1975.
Ghulam Rasul father of the deceased applied for the cancellation of their bail d on 16-1-1976 the Additional Sessions Judge, Sargodha cancelled their bail. Hence this petition by Muhammad Sajjad.
2. In this case the F. I. R. Is based on the statement of Ghulam Sarwar (deceased) which he made in the hospital and six days thereafter he died. It was alleged that the accused suspected the deceased of having got father of Akbar accused beaten about 1-3/4 years before the occurrence in this case, and in order to avenge the beating the petitioner and his co-accused Muhammad Akbar who were neighbours of the deceased were alleged to have fired a gun shot each at Ghulam Sarwar from over the adjoining wall of their houses. The deceased was said to be sitting on the charpai when the accused first raised the lalkara. The occurrence was witnessed by Ghulam Rasul father of the deceased, Mst. Safia aunt of the deceased, Muhammad Azim and Mukhtar P. Ws.
3. Learned counsel for the petitioner contended that immediately after the occurrence, Muhammad Iqbal brother of the petitioner appeared before the police and disclosed that in fact he had committed the murder of Ghulam Sarwar but in spite of this disclosure the police has substituted the petitioner and his co-accused for the real murderer. It was also contended that Muhammad Iqbal made applications to different authorities and on one of his applications the District Magistrate ordered a judicial inquiry which was held by the Resident Magistrate, Bhalwal. It may be mentioned at this stage that two inquiries about the same occurrence could not be held under the law. However, the statements of the witnesses recorded by the Resident Mugistrate, Bhalwal could at the most be treated as statements recorded under section 164, Cr. P. C. But his findings have no legal value. Four eye-witnesses who were examined during the commitment proceedings have supported the allegations contained in the F. I. R. Based on the statement of the deceased. As to what would be the value of the F. I. R. As a dying declaration is a question to be considered at the trial. Learned counsel for the petitioner also argued that there were only eight wounds caused to the deceased by pellets which could be the result of one gunshot. Had two shots been fired, there would have been more injuries to the deceased than just the eight wounds. I have considered the matter and am of the view that it is not possible to give a finding in this regard at this stage of the case. It may however be mentioned that in the site plan it is shown that there were also signs of grazing of the pellets on the courtyard wall. It was also contended that according to the medical evidence the deceased was fired while he was standing but the witnesses stated that he was sitting on the charpai at that time. I have considered this aspect of the matter. Prosecution case is that there was first an Ialkara and then the gun was fired.
' I am of the view that these circumstances can only be properly weighed and assessed after taking into account the entire evidence of the case. It was next argued that the Inspector, Crimes Branch gave a different finding in this case. If two Investigating Agencies differ, that per se is no ground for bail. In this case the deceased when alive named the petitioner and his companion as his assailants. Four eye-witnesses have supported the report made by the deceased. Whether the eye-witnesses should be believed or not is a matter which can only be gone into at the trial. This petition is dismissed.