2018 PLP 28 (SCMR)

SAJJAD ALI SHAH, J.

Petitioner seeks cancellation of bail granted to the respondents through the impugned order by the Peshawar High Court in crime No.107 dated 20.2.2016 registered under sections 302, 34, P.P.C. at Police Station Kalu Khan District Swabi.

2. The case of the prosecution is that the petitioner along with her deceased son on motor bike was going towards her fields when the respondents/accused chased them with the intent to kill. They disembarked and his son ran towards a house to take shelter where both the respondents chased him and caused fire arm injuries resulting in his death.

3. Learned counsel for the petitioner contends that the order of the High Court is perverse as the respondents were enlarged on bail in a promptly lodged FIR by an eye-witness of the incident assigning specific roles to the respondents. It was next contended that the deceased was brutally murdered by causing 14 fire arms injures whereas 64 empties were recovered from the place of incident. It was, therefore, prayed that it was not a case of bail specially when the respondents after the incident remained absconders for almost 15 months and contended that the order of the High Court needs to be recalled.

4. On the other hand, learned counsel for the respondents contends that the respondents have been implicated in an unseen incident due to previous enmity. It was next contended that in the house where the deceased was murdered, an eye-witness Mst. Sherinay was present who in her statement recorded under section 164, Cr.P.C. did not mention the presence of the complainant on the place of incident which proves that it was an unseen murder and the respondents were nominated due to previous enmity. He further contends that the instant case does not fit within the criteria laid down for recalling the concession of bail.

5. We have heard the learned counsel for the respective parties and have carefully gone through the record. Perusal of record reveals that incident took place on 20.2.2016 at 18:40 hours and the FIR was lodged on the same day at 19:05 hours i.e. within 25 minutes of the incident which, if not eliminates but minimize the chances of false implication. Both the respondents have been specifically not only named in the FIR but have been assigned specific roles and there hardly appears any reason for disbelieving the complainant who claims to be the eye-witness of the incident. So far as the statement of Mst. Sherinay is concerned, she has deposed in her 164 statement that at the time of incident, she was in her kitchen when she saw one boy entered into her house and escaped in a room whereafter two persons chased him in the room and opened fired and she due to the use of heavy fire arms, got unconscious. She has stated that she did not recognize any one of the three. In our tentative opinion, this statement leads support to the prosecution story. Beside the medical report fully supports the version of the complainant. It is also evident from the record that after the incident, the present respondents remained absconders for almost 15 months and no plausible reason was advanced to justify their abscondence.

6. In the foregoing circumstances, sufficient material was available on record which prima facie, connect the respondents with the commission of offence and we have no doubt in our mind that the order granting bail to the respondents not only ignores the basic principles for the grant of bail but appears to be perverse.

7. Keeping in view the above circumstances, this petition is converted into appeal and is allowed. The impugned order is set aside and the bail granted to the respondents is recalled. MWAR-11/SC Bail recalled.