1997 P Cr (PLP)

Through the under consideration petition for cancellation of the bail filed by the petitioner, who is the victim of an armed assault at the hands of the accused/respondent alongwith others in a case registered under section 324/148/ 149, P.P.C., the bail granted to Naimat Ali Khan by the learned Special Judge, Bannu per his order dated 16-1-1995 is sought to be recalled.

2. According to the report lodged by the petitioner Muhammad Israil Khan, he: alongwith one Khan Daraz Khan and Arifullah Khan were present in the Balakhana when somebody called him that he had been sent for by Naimat Ali Khan in response to which he alongwith Khandaraz and Arifullah got down the Balakhana and went to the market, where the accused/respondent alongwith five other co-accused armed with klashnikovs were standing. Accused Naimat Ali Khan at once started firing at them as a result of which he and Khandaraz sustained injuries. The other co-accused had also fired at them but a passerby was injured. All the accused decamped from the spot after the occurrence.

3. Except Naimat Ali Khan, accused/respondent, the remaining five co -accused were arrested out of whom Rehmat Ali Khan and Azmat Ali Khan were granted bail by the trial Court while the same relief was refused to accused Muhabbat Ali, Shafqat Ali and Niabat Ali. The bail cancellation application against the two accused and bail: petition of the three accused was dealt with by this Court and vide order, dated 12-6-1994 the bail allowed to the two accused was not cancelled while the other three accused were directed to be released on bail. While passing the aforesaid order, the Honourable Judge of this Court had commented upon the role attributed to accused Naimat Ali Khan by distinguishing the case of the other co-accused from that of Naimat Ali Khan with the following observations:-- "That it was he 'the accused Naimat Ali Khan' who was attributed the first volley of firing without being provoked on the spot with which the complainant and the eye-witnesses were injured." Motive for the occurrence had also been attributed to him and it was he who sent someone to the complainant.

4. The accused/respondent remained absconder for sufficient long time and it was on 11-1-1995 when he was arrested, i.e. after about ten months of the occurrence, whereafter he applied for bail in the trial Court, which was accepted on 16-1-1995. The learned trial Court while allowing bail to the accused/respondent observed that the injury caused to Khandaraz P.W. is on non-vital part of the body while injury caused to complainant Muhammad Israil has been declared as dangerous to human life by the Medical Officer; that in the site plan the petitioner Niamat Ali has been shown at point No.5 armed with klashnikov but no recovery of empties has been made by the Investigating Officer from the place; that the Investigating Officer had found bullet marks on points Nos. 17, 18 and 19 which are not at all within the firing range assigned to the accused. P.W. Arifullah was arrested from the spot alongwith an M.16 rifle and recovery of empties giving the smell of fresh discharge from point No .14 which clearly suggest that the complainant party has also made firing at the time of occurrence. From the abovementioned discussion the Court inferred a conclusion that after altercation the incident had taken place all of a sudden between the two parties and it would be determined at the time of trial that whether the injured persons sustained injuries in general firing or from the firing of one of the accused and ultimately granted bail to the accused/respondent.

5. The reasons advanced by the trial Court are not the one, which could be considered to be the grounds for releasing of an accused on bail and when specially some of the facts, which go against the accused/respondent are not adverted to. His abscondence for sufficient long period with no plausible explanation and recoveries of empties and bullets from the various places have not been altogether attended to. Accused Naimat Ali is attributed the role of effective firing at the complainant who sustained injuries on his chest, i.e. vital part of the body and even the role of effective firing at P.W. Khan Daraz is also attributed to him who sustained injuries on the right knee joint. In view of the direct charge for effective firing at the complainant and P.W. Khan Daraz attributed to the accused/respondent supported by circumstantial evidence in the shape of recoveries of empties and bullet marks on various places, his unexplained abscondence soon after the occurrence coupled with the reasons qua the accused/respondent which was taken note of by this Court in connection with the bail matter of the co-accused discussed earlier, there are reasonable grounds for believing that the accused/respondent is guilty of the offence charged with and the discretion exercised by the Court below seems to be fanciful and arbitrary. The impugned order is, therefore, not sustainable in the eyes of law.

6. However, learned counsel for the accused/respondent contended that under the Suppression of Terrorist Activities Act, 1975, there is no provision for or cancellation of bail and once it is allowed, it cannot be cancelled by any Court including this Court. Nonetheless, there is no express bar in the Act (ibid) to oust the jurisdiction of this Court in matters of cancellation of bail. Even this Court has got vast powers under section 561-A, Cr.P.C. to prevent the abuse of the process of Court whenever it sees that there is some miscarriage of justice committed by any forum by passing an order which is not in consonance with the law or principles laid down by the superior Courts, it may interfere. In the instant case as is evident from the discussion made above, since a miscarriage of justice has taken place in passing the impugned order by the Court below, indulgence of this Court is warranted.

7. Resultantly, this application is accepted, the impugned order, dated 16-1-1995 of the learned Special/Sessions Judge, Bannu is set aside and the bail granted to the accused/respondent Naimat Ali Khan is recalled. He is present in Court, taken into custody and sent to judicial lock-up to await his trial as an undertrial prisoner. Record of the case be sent back to the trial Court immediately. H.B.T./2054/P Application accepted