2012 P Cr (PLP)

NISAR HUSSAIN KHAN, J.

Petitioner/complainant through instant petition seeks cancellation of bail of respondent, allowed by learned Additional Sessions Judge-II, Lakki Marwat, vide order dated 10-12-2011, in case F.I.R. No.316, dated 20-10-2011, registered under sections 302/324/34, P.P.C., at Police Station Tajori.

2. Learned counsel for the complainant/petitioner argued that the bail granting order of learned lower court is wrong, illegal and perverse, as there is no delay in lodging of F.I.R., keeping in view the distance of hospital, where complainant made the report and that of the Police Station, which is at a distance of about 60 k.ms., whereas delay per se is no ground for grant of bail; that Post Mortem report fully supports the version of F.I.R.; that one empty of .12 bore shotgun has been recovered from the place of occurrence; that the parties are co-villagers, so there is no question of misidentification, while place of occurrence is a market, where the lights were on; that the plea of alibi is based on some affidavits of the close relatives of respondent, on which the police opinion is based, which can only be determined after recording evidence at trial; that the crime weapon has been recovered from the co-accused Ismail, so in the given circumstances the impugned order of bail is liable to be recalled.

3. Learned counsel for the respondent argued that there is a delay of three hours in registration of the case, so the F.I.R. is fabricated document; that medical report does not contain the name of complainant; That the Chowk Gambila is at a little distance from the place of occurrence, but report not lodged there, which has been made at Bannu Hospital; that ASI, Police Post Gambila was not supposed to follow the injured to Bannu Hospital to record report of the complainant, which is mala fide on the part of police; that no bullet marks were found on the opposite wall, falling in the line of fire; that single empty of .12 bore shotgun was recovered from the place of occurrence; that keeping in view, the distance between the victim and assailants, the injuries of .12 bore shotgun are not possible as depicted in the medical report; that according to the opinion of the doctor, the deceased died of cardiac arrest; that the motive was with Ismail, co-accused, so there was no occasion for Ali Muhammad, his master, to commit the crime. So bail was rightly allowed by the learned lower court, which is not required to be interfered with, as the liberty of the respondent is involved and principle for cancellation of bail is altogether different from grant of bail.

4. Arguments of learned counsel for the parties and learned AAG heard and record perused.

5. According to the impugned order, the respondent was granted bail by the learned lower court on the ground of delay in lodging report, the doubtful identification of assailants, keeping in view the distance between victim and that of the assailants, the motive being directed against the co-accused, non-production of other shop-keepers as witness in the case, recovery of one empty from the place of co-accused, on the plea of alibi of the respondent and he being Govt. servant.

6. The perusal of the F.I.R. reveals that place of occurrence is at a distance of 35/36 k.ms. from the Police Station. While report has been lodged in Civil Hospital Bannu, which is statedly situated at round about 60 k.ms. from the place of occurrence, which is not disputed by the respondent. F.I.R. further reveals that deceased was brought to the hospital in injured condition, so in the circumstances provision of medical aid to the victim would have been the first priority of his kith and kins, instead of lodging the report. So keeping in view, the distance of Bannu hospital from the place of occurrence and condition of victim, the delay in the report could have not been accounted against the petitioner at bail stage, which otherwise per se is no ground for grant of bail. Respondent Ali Muhammad and his co-accused are directly charged in F.I.R. for effective firing on the deceased with .12 bore shotguns, one being double barrel and other being repeater. According to Post Mortem Report, there is one stitched wound in centre of abdomen, three stitched wounds on the lateral side of left side of chest and three stitched wounds on the front and left side of abdomen. Keeping in view the distance between the victim and assailants, the injuries on the person of the deceased cannot be the result of single fire shot, by virtue of the ratio of spreading of the pallets, as per medical jurisprudence. The medical report fully supports the version of complainant. The blood has been recovered from the place of deceased and one empty of .12 bore shotgun was also recovered from the place of Ismail, co-accused, who was armed with .12 bore repeater. Whereas, respondent/accused has been assigned double barrel .12 bore shotgun. The repeater do eject empty automatically, whereas double barrel shotgun do not. So non-recovery of other empties can be answered at trial.

7. On tentative assessment of above-mentioned prosecution evidence, the respondent is prima facie connected with the crime, entailing capital punishment, leaving no room for any sort of further inquiry. The plea of alibi of the respondent is based on some affidavits of his defence witnesses, on the basis of which neither I.O. could have declared the respondent as innocent, nor lower court was justified to grant him bail. In light of the overwhelming prosecution evidence, it was sole domain of trial Court, after recording evidence, to determine the genuineness or otherwise of the plea taken by the accused.

8. Learned lower court has travelled beyond its jurisdiction and trespassed the parameters set by the superior courts from time to time for grant or refusal of bail, in a case of capital punishment. Learned lower court has deeply appreciated the evidence and touched the merits of the case, which is sole domain of the trial court. The impugned order is not only arbitrary and erroneous but is also in violation of principle set by the superior courts, causing miscarriage of justice, which if allowed to remain in field, would certainly affect merits of the case, at trial. If such like appreciation of evidence, at bail stage, is allowed to perpetuate, then each and every criminal case will be of further enquiry and accused would be entitled for bail. The accused cannot be released on bail merely on the ground of further enquiry, unless the court records its findings qua the pre-condition of 497(2), Cr.P.C. viz that there are no reasonable grounds for believing that accused has committed a non-bailable offence.

9. Thus, for the reasons discussed above, this petition is allowed, impugned order of learned lower court is recalled and bail of respondent is cancelled. As a consequence whereof, he is taken into custody and be sent to judicial lockup. These are the reasons of my short order of even date. M.W.A./114/P Application allowed.