1988 PLP 1555 (PCRLJ)

Hidayatuallh, the complainant, has moved this criminal miscellaneous application for cancellation of pre-arrest bail granted to the accused/ respondent by the Additional Sessions Judge, Bannu at Lakki, in offences under section 302/307/34, P.P.C. charged per F.I.R. No.45 dated 11-10-1986 of Police Station Dadiwala vide his order dated 7-5-1987.

2. It may be briefly stated that Hidayatuilah lodged the report in the police station on the eventful day at 00.30 hours in which he stated that on the day of occurrence at about 5.00 P.M.. he alongwith Mushtaq Ahmad alias Dina Gul, the deceased who was Afghan Pawainda, started from Chakli towards village Mangla,. He was going ahead of Mushtaq Ahmad deceased when at about 17.20 hours on reaching the place of occurrence, Abdul Majeed Khan son of Muhammad Akram Khan, resident of Ghazni Khel and Sarwar (father's name not known), resident of Dadiwala duly armed emerged from a nearby. Abdul Majeed Khan was armed with a kalashunkov while Sarwar Khan was armed with a 303 bore rifle. Abdul Majeed called out Sarwar to kill him and simultaneously both of them started firing at him. With the firing, Mushtaq Ahmad his companion, was hit, and fell down. Thereafter, both of them fired at him numerous shots but he was saved. It was after the evening that he arrived at Mangla where he narrated -the occurrence to the residents of .the village. Motive for the offence is a dispute over landed property with Abdul.Majeed as was stated by the complainant in the F.I.R.

3. It may be pointed out that in 'the investigation made by the police, Abdul Majeed co-accused was found innocent and falsely involved ' in the case. He was, therefore, released under section 169, Cr.P.C.

4. The present accused-respondent, however, moved an application for his pre-arrest bail. He was allowed an interim bail but on his non-appearance before the Additional Sessions Judge on the date of hearing, the same was re-called. He then approached this Court but his application was sent back to the learned Additional Sessions Judge for giving his decision on merits of the case as the accused satisfactorily, explained his non-appearance on the relevant date. The learned Additional Sessions Judge, thereafter, after hearing the learned counsel for the parties allowed, bail to the accused respondent vide the impugned order.

5. The learned counsel for the petitioner contended that the accused is directly charged in the F.I.R. and that he was not found to have been falsely involved in the case otherwise he would have also been released under section 169, Cr.P.C. Prima facie, therefore, he is well-connected with the commission of the offence. It was further contended that neither any motive has been attributed to the complainant for bringing a false charge against him nor any mala fides is alleged and proved on the record, hence the order granting bail before arrest is unwarranted under the law. While drawing distinction in the grant of bail before-arrest and that of bail after arrest, it was contended that the grounds on which bail is granted in the present case could be considered reasonable' but the same would not justify grant of bail before arrest. Reliance was placed on 1988 S C M R 28' (Tariq Parwaiz and another v. The State) P L D 1983 Supreme Court 82 (Murad Khan v., Fazal-e-Subhan and another and 1987 S C M R 1522 (Muhammad Amin and another v. The State).

6. On the other hand, the learned counsel representing the accused argued that no motive for the offence has been attributed to the present accused respondent. That Abdul Majeed Khan has been attributed the same role as is given to the accused/respondent but he had been found innocent by the Investigation Officer and has since been released under section 169, Cr.P.C. The charge being the same and the only eye-witness, apparently, having falsely involved the co-accused, reliance cannot be placed' on it. It was further argued that the occurrence is alleged to have taken place at 1720 hours while the report was, lodged at midnight. The inordinate delay in lodging the report has not been. explained in the F.I.R. which further creates a doubt that the deceased was done to death at midnight and the occurrence is an unwitnessed one. That the accused-respondent, being, the party man of Abdul Majeed Khan has been falsely charged by the complainant due to his land disputes with Abdul Majeed Khan. The learned' counsel further argued that though the accused are charged for having fired a volley of shots but only one injury was found on the person of the deceased. No empty or bullet of kalashinkov or of 303 bore was found at the spot. It was lastly argued that the accused-respondent is an elderly man suffering from T.B. and after his release on bail, some 1 years back, he has riot rampered with any evidence and there is, no other reasonable ground for setting aside the order.

7. The learned Assistant Advocate-General supported the order of the learned Additional Sessions Judge. He was of the view that the only eye-witness in the case has not been believed as against Abdul Majeed Khan with whom the complainant has direct motive. That both the accused having been given the same role, his release under section 169, Cr.P.C. has adversely affected at this stage, the prosecution's case. He, therefore, argued that no interference is required in the direction exercised by the trial Court. The authorities, relied upon by the learned counsel for the petitioner were stated to be distinguishable on material facts. i.e. in those cases sufficient evidence was available connecting the accused, charged in the F.I.R., with the ommission of the offence.

8. After hearing the learned counsel for the both the parties, I agree with the learned counsel for accused respondent arid the Assistant Advocate-General for the State. It is only the complainant who has charged the accused-respondent `and Abdul Majeed Khan for having fired numerous shots at the deceased as well as the complainant with their respective weapons such as Kalashunkov and 303 bore rifle. The medical report suggests that the deceased received only one bullet injury. No empties have been recovered from the spot to lend support to the complainant's version. The delay in lodging the report, even at this stage, cannot be ignored. Both the accused having been equally charged and one of them namely Abdul Majeed Khan having been found to be innocently involved due to enmity, the case becomes that of further enquiry. On going through the order of the learned Additional Sessions Judge and the fact that the accused-respondent has no motive of his own for firing at the deceased and the complainant and the fact that he is an elderly man suffering from chronic T.B. and furthermore that during the period of his enlargement on bail no grievance is raised in this Court that he violated the concession, no interference is required in the impugned order. For the reasons stated above, the order granting pre-arrest bail to the accused-respondent requires no interference. This application, therefore, stands rejected. M.Y.H./608/P Petition rejected.