2022 PLP 701 (YLR)

MALIK HAQ NAWAZ, C.J.

The petitioner/complainant has moved the instant bail cancellation petition under section 497(5), Cr.P.C. for setting aside the impugned order dated 27.10.2020 passed by the learned Additional Sessions Judge, Skardu in Cr. Misc. No.05/2020, whereby the learned Additional Sessions Judge Skardu has granted bail to respondent/accused, in case FIR No.48/2020 registered under sections 302, 324, 337-A, P.P.C. at Police Station City Skardu.

2. Brief resume of the case has been described by the learned Addl. Sessions Judge, Skardu in Para-3 of his order dated 27.10.2020, which is reproduced as under: "Brief facts of the case are that on 07.07.20 at 9p.m one Fida Ali reported to police that his nephew had gone to Kushmarah Gond to his maternal grandfather. It has come to his knowledge that one Shabbir Hussain has hit him on his head by shovel with intention to kill him. His nephew has received head injury and is admitted in hospital. Police registered FIR and started investigation, arrested the accused, recovered bailcha, handle and some blood stained soil. SIM cards of both accused and deceased were also taken for CDR. On 14.07.2020, the injured died in PIMS Islamabad whereupon, after receipt of medical reports, sections 324, 337- A(v)(vi) were deleted and section 302, P.P.C. was added. The accused and his wife were again taken on physical remand. The SIM of wife of the accused was also taken into possession for CDR. Later on, the wife of the accused Shabbir was released under section 169, Cr.P.C."

3. Learned Dy. Advocate General submitted that the learned Addl. Sessions Judge Skardu, without going into the merits and facts of the case, has granted bail to the accused/respondent, which is liable to be recalled in the interest of justice. The learned Dy. Advocate General argued that the accused/ respondent after occurrence came to Police Chowki Clifton Bridge Skardu with handle of spade and confessed that he has murdered the deceased namely Javed, but the learned Addl. Sessions Judge Skardu ignored this point, hence the impugned order is liable to be recalled. The learned Dy. Advocate General further argued that the offence committed by accused/respondent provides capital punishment, but the learned Addl. Sessions Judge, Skardu has also ignored this point. The learned Dy. Advocate General contended that the accused/ respondent being influential person, used to threaten the complainant and PWs, hence the bail allowed to the accused/ respondent is liable to be recalled. Lastly the learned Dy. Advocate General argued that the accused has committed an offence which is against the society and continuation of bail facility to the accused/respondent gives gesture of lawlessness in the society, hence bail granted to the accused is liable to be recalled.

4. On the other hand, the learned counsel for respondent/accused opposed this petition by contending that the learned Sessions Judge Gilgit has rightly exercised his discretion while entertaining the bail petition of respondent/accused. The learned counsel for respondent/ accused contended that the deceased had tried to rape the wife of the respondent/ accused finding her alone in the field and the respondent/accused on her shouting, appeared there and hit the deceased with spade. The respondent/ accused has acted in self defence, hence no offence has been committed by him. The learned counsel for respondent/ accused argued that the respondent/ accused has threatened neither the complainant nor the PWs. There is no apprehension of misuse of bail facility by the respondent/accused. He accordingly prayed for dismissal for this petition being meritless.

5. I have heard the arguments of the parties and perused the available record of the case as well as the impugned order dated 27.10.2020.

6. Perusal of FIR shows that the respondent/accused has been directly charged in the FIR by the complainant with the allegation that the present respondent/accused has hit the nephew of complainant namely Javed (decease) by spade with intention to kill him. Police recovered a spade without handle from the place of occurrence. The respondent/ accused himself appeared at Police Chowki Clifton Bridge by holding handle of spade and stated to police that he has hit an unknown person with spade on his field/plat, the spade has left at the place of occurrence, and he has taken the handle of spade with him. The police took the handle from the present accused/ respondent. Thus prima facie there is no doubt regarding recovery of spade and its handle and it appears that the accused/ respondent has admitted the commission of offence in front of PWs Rehmat Ali, Muhammad Ishaq and Muhammad Yousuf. PW Jafar Ali has stated that the deceased went towards the house of present accused/respondent by saying to the said PW that the present accused/ respondent has to pay some amount to the deceased. Thus this PW has stated the reason of the presence of the deceased on the land of accused/ respondent.

7. The allegation on the deceased by the present respondent/accused regarding rape of his wife by the deceased is not justified by any PW nor there is any statement of the victim which may substantiate the stance of the accused. Thus the plea of self defence on the part of accused is not convincing and the learned Addl. Sessions Judge has misconstrued the facts of the case. The offence provides capital punishment, where grant of bail to a nominated accused would amount to miscarriage of justice.

8. In view of above, I am inclined to accept this petition. Consequently, the impugned order dated 27.10.2020 passed by the learned Addl. Sessions Judge, Skardu in Criminal Miscellaneous No.5 of 2020 is hereby set aside and bail granted to accused Shabbir Hussain is recalled under subsection (5) of section 497, Cr.P.C.

9. Criminal Miscellaneous No. 235 of 2020 is disposed-off. File SA/38/GB Bail cancelled.