1988 P Cr (PLP)

Malik Muhammad Khan for Petitioner. Kh. Sultan Ahmad for Respondents. Wafadar Khan for the State. Sultan Sikandar petitioner has moved , this petition for cancellation of bail allowed by the learned Sessions Judge, Mianwali, to Muhammad Aslam Khan and Umar Hayat Khan respondents in case F.I.R. No. 48, dated 25‑2‑1986, P.S. City Mianwali, under sections 148 and 302/149 of the P.P.C.

2. The prosecution version was that on 25‑2‑1986 at 5‑45 p.m. Sultan Sikandar complainant, Muhammad Amir, Alam Khan and deceased persons Saadullah Khan and Noor Khan were going towards the bus stand when Sardar Khan, Asmatullah, Muhammad Akram, Muhammad Ashraf and respondents Muhammad Aslam Khan and Umar Hayat confronted them. Muhammad Aslam respondent was armed with 7 mm rifle and the others had guns with them. The accused persons challenged them that they had come to take revenge. Simultaneously Sardar Khan fired at Noor Khan deceased hitting his head and Umar Hayat respondent fired at Saadullah Khan deceased hitting the back side of head. Asmatullah also fired at him. Then Muhammad Akram, Muhammad Ashraf and Muhammad Aslam respondents fired at Noor Khan deceased. Thereafter, all the accused fired at both the deceased. persons, Saadullah Khan was also given butt blows by them. The motive for the occurrence was that in the year 1956 Noor Khan deceased had murdered Bahadur Khan, brother of co‑accused Sardar Khan and Umar Hayat respondents, and 5/6 months prior to the occurrence Noor Khan deceased and others had fired at Sardar Khan and others, and a case under section 307 of the P.P.C. was registered. It is further alleged that a day prior to the occurrence the accused persons fired at Noor Khan, but he escaped unhurt and got a case registered at Police Station Musa Khel in respect of that occurrence.

3. Perusal of the impugned judgment reveals that it was contended before the learned Sessions Judge that Muhammad Aslam respondent had been declared innocent during the investigation, and according to the report, dated 28‑6‑1987 of the Inspector, C.I.A. .Umar Hayat respondent had come to the spot after the occurrence. The District Attorney opposed the prayer for bail. After considering the arguments of the parties the learned Sessions Judge granted bail to both the respondents.

4. Learned counsel for the petitioner contends that specific injuries have been attributed to both the respondents and they had strong motive to do away with the deceased, therefore, they are not entitled to bail merely on the basis of police report which is not binding on the Court. Learned counsel for the respondents, on the other hand, submits that the plea of alibi raised by Muhammad Aslam respondent was fully established during the investigation and the police had made an application for his discharge. About Umar Hayat respondent, he submits that the allegation made in the F.I.R. against him was not found correct during the investigation, therefore, bail had been rightly allowed.

5. I have considered the submissions made at the bar, in the light of the material available on the record. Muhammad Aslam respondent was found innocent during the investigation and has been shown in column No. 2 of the challan. It is true that the finding of the police officer is not binding on Court, but it is a relevant consideration in a bail matter. So far as Muhammad Aslam respondent is concerned, I see no ground for interference with the discretion exercised by the learned Sessions Judge. The case of Umar Hayat respondent, however, stands on a different footing. He was not found innocent during the investigation, and has been challaned alongwith other accused persons. The contentions raised before the learned Sessions Judge with regard to Umar Hayat respondent are not borne out from the record. The petition, insofar as he is concerned, is allowed and his bail is cancelled. He shall be taken into custody and sent to jail. S.G.D/S‑190/L Order accordingly.