1988 P Cr (PLP)

(b) Criminal Procedure- Code (V -of 1898)

S. 497(5)--Bail, cancellation of--Abscondence of accused, held, disentitled accused to concession of bail.--[ Abscondence]. Zahoorul Haq for Petitioner. S. Akhtar Munir and S. Ibne Ali, A.-G. for Respondents. Date of hearing: 7th November, 1987. Vide F.I.R. No. 270 P.S. Hangu dated 12-6-1987 Ashor Gul, the complainant charged Zar Moeen and Mohammad Jan along their three co-accused for firing at the complainant and his companions, Sial Gul brother and Khadi Gul cousin, as a result he was injured in his right shoulder' by fire shot of Zar Moeen while the fire shot Mohammad Jan accused hit him on his right cheek, however, the other fire shots had proved ineffective. His cousin Khadi Gul PW also made the same statement during his examination under section 161, Cr.P.C. However, his brother Sial Gul PW made a statement that all the accused opened fire at the complainant party and that as a result of those fire shots the complainant was injured. He did not attribute the effective fire shots to Zar Moeen and Mohammad Jan accused-respondents particularly. As regards motive, the complainant and the two PWs had unanimously stated that the present occurrence had taken place on account of earlier murders between the parties. 2. The learned Sessions Judge, Kohat granted bail to Mohammad Jan accused-respondent by his order dated 12-7-1987 under reasoning that although Ashoor Gul complainant charged Zar Moeen and Mohammad Jan accused-respondents for effective firing with motive for the offence of a dispute regarding females but Sial Gul PW in his police statement deposed (stated) that all the accused started firing at them (complainant party) and has not attributed specific role to Mohammad Jan accused-respondent. He further observed that there were only two entrance wounds on the person of the complainant in different dimensions and that the nature of the injuries was also opined simple by the doctor and that the injured complainant has since been discharged from hospital and that most of the investigation was also complete and that the accused-respondent was no more required for further investigation. Zar Moeen accused-respondent: was also later on released on bail by the Magistrate 1st Class, Hangu vide his order dated 17-7-1987 under the same reasoning since in his case too Sial Gul PW had not attributed a specific role to him. In cancellation application the learned Additional Sessions Judge, Kohat affirmed the bail granted to Zar Moeen accused by his order dated 31-8-1987 and adopted the reasoning of not attributing effective shot specifically to Zar Moeen accused-respondent. Complainant-petitioner had moved separate applications for the cancellation of bail of Mohammad Jan and Zar Moeen accused which are hereby disposed of as follows:- 2-A. After hearing the learned counsel for the complainant, accused-respondents and the learned Advocate-General and going through the evidence on record this Court is constrained to remark that the learned Sessions Judge, Kohat as well the learned Additional Sessions Judge had not properly followed the law in releasing the accused-respondents on bail nor they have fully highlighted the factual aspect of the case so much so that in the FIR as well in the police statements of the two PWs the motive was advanced of earlier murders between the parties but still both the Courts have incorporated the motive of dispute regarding females in their orders. It appears that the same was perhaps read from 'Zimnis', reporting that the parties had earlier gone for murders over the disgrace of womenfolk. There was also made no reference to the statement of Khadi Gul PW who had specifically charged Zar Moeen and Mohammad Jan accused-' respondents for effective firing at the complainant. Besides Sial Gul PW had only stated that all the five accused opened fire at them (complainant party) and that as a result of their fire shots Ashor Gul, the complainant was hit. No doubt, he did not say that as a result of whose fire shots the complainant was hit but he had also not said that the fire shots of all the accused had proved effective as read by the learned Sessions Judge and the learned Additional Sessions Judge, Kohat. The learned Courts below have not referred to the recoveries of 15 empties of 7.62 bore rifles with smell of fresh discharge from the places of the presence of the accused-respondents particularly. The learned Additional Sessions Judge has also not referred to the two months unexplained abscondence of Zar Moeen accused-respondent which was by itself to disentitle him to the concession of bail, irrespective of merit. Simple nature of the injuries sustained by the complainant and his discharge from the hospital had also weighed with the learned Sessions Judges to release the accused-respondents on bail. It was not appreciated that in the presence of a strong motive of vendetta of previous murders and in the facts of the case when the accused party had chased the complainant party and has opened fire at them with klashnikov rifles and as a result the complainant had sustained fire-arm injuries in his right shoulder and right cheek, it was apparently a case of murderous assault. It cannot be said that the accused had neither the intention nor knowledge to put the complainant party to death. Prima facie it is a case to fall under the second part of section 307, PPC since hurt was caused to the complainant. The offence is punishable with imprisonment for life and the case of the accused-respondents would be seemingly covered by the prohibitory class contained in subsection (1) of section 497, Cr.P.C. 3. In view of what has been stated above the learned Sessions Judge, Kohat have been found to have granted bail to the accused- respondents in presence of reasonable grounds for believing that they had been guilty of the offence punishable with imprisonment for life. Besides, not that the learned Sessions Judges have misread the evidence but in case of Zar Moeen accused-respondent his unexplained abscondence has also not been taken into consideration. This Court would, therefore, cancel the bails of the accused- respondents who are present in Court, taken into custody and remanded to judicial lock up accordingly. M.Y.H./571/P Bail cancelled.