2008 PLP 738 (MLD)

M. BILAL KHAN, J.

Nasir Muhammad son of Muhammad Aslam, the petitioner, who is complainant in case F.I.R. No.82, dated 22-2-2005, registered with Police Station Saddar, Mandi Baha-ud-Din, for offences under sections 302, 324, 148, 149 read with section 109, P.P.C., by filing this petition under 'section 497(5), Cr.P.C. seeks cancellation of the post-arrest bail allowed to Muhammad Akhtar son of Muhammad Khan, respondent No.1, by the learned Additional Sessions Judge, Mandi Baha-ud-Din vide order, dated 30-3-2007.

2. Concisely the facts giving rise to the instant petition were that the petitioner got the aforesaid case registered against Muhammad Akhtar (respondent No.1), Muhammad Afzal sons of Muhammad Khan, Ghulam Raza son of Ghulam Abbas, Mohsan Raza son of Ghulam Raza, Shahzad Akbar son of Ghulam Akbar, Mazhar son of Nazir Ahmad, Muhammad Afzal, Muhammad Akhtar sons of Mehdi Khan, Shaukat Zaman, Khalid Zaman sons of Zaman and Shahbaz son of Rehmat Khan alleging therein that they while carrying rifles and guns had come to the spot while raising Lalkaras; Ghazanfar Ali brother of the complainant on seeing them started running, whereupon Muhammad Akhtar son of Muhammad Khan (respondent No.1) had fired shots through his rifle .44-bore which had struck on the back and right thigh of Ghazanfar Ali, who on receipt of injuries fell prone; thereafter, within the sight of the complainant/petitioner and his companions, namely, Zahid and Faisal, Shaukat Zaman, Muhammad Afzal son of Muhammad Khan, Shahbaz Ahmad and Ghulam Raza had made indiscriminate firing with their respective weapons, as a result of which Ahmad Khan, Sultan Ahmad and Munir Hussain suffered serious injuries, however, rest of the accused remained busy in making aerial firing; Ahmad Khan succumbed to his injuries instantaneously, whereas Ghazanfar Ali breathed his. last on the way to Hospital; Sultan Ahmad and Munir Hussain injured had been shifted to the hospital for treatment; Muhammad Akram son of Nawab Khan, Nazir Ahmad son of Ghulam Haider and Muhammad Khan son of Sultan had allegedly abetted the crime behind the scene; motive behind the occurrence was previous murder animosity between the parties. Being dissatisfied with the conduct of investigation by the local police, wherein the accused had been found to be innocent, the complainant had opted to file a private complaint, wherein the learned trial Court after preliminary inquiry had proceeded to summon the accused to face the trial. However, in the meanwhile, during the course of investigation conducted by the Range Crime, the accused had been found involved in the commission of crime, wherein two innocent persons had been put to death. After having been arrested, respondent No.1 preferred his application for grant of post-arrest bail before the Court of Session', which was allowed by the learned Additional Sessions Judge, Mandi Baha-ud-Din vide order, dated 30-3-2007. Hence, the instant petition.

3. I have heard the learned counsel for the parties at considerable length and have also gone through the record as well as the order impugned herein.

4. It has been observed that respondents No.1 had been duly nominated in the F.I.R. with a specific role of causing fire-arm injuries to Ghazanfar Ali on his back and right thigh, as a result whereof he had breathed his last. It was an incident wherein two innocent persons i.e. Ghazanfar Ali and Ahmad Ali had lost their lives. Although respondent No.1 and his co-accused had been found to be innocent by the local police, but later on they had been declared to be involved in the commission of crime during the course of investigation conducted by the Range Crimes. Respondent No.1 had been allowed bail by the learned Additional Sessions Judge vide the impugned order on the ground that since the said respondent had been allowed bail in the complaint case, there was no justification for declining him bail in the State case, which was to be kept in abeyance and to be taken up only after the proceedings in the complaint case were over. By doing so, the learned Additional Sessions Judge had obviously fallen into a grave error as in such-like circumstances it has never been considered to be a ground for release on bail of an accused person in a State case. In the case of Muhammad Hanif and 6 others v. The State (2001 PCr.LJ 1470), a Division Bench of this Court had held that submission of bail bonds by the accused under section 91, Cr.P.C. upon issue of process in a private complaint would not ipso facto bring the police case involving capital punishment within the ambit of section 497(2), Cr.P.C. Likewise in the case of Mukhtar Ahmad v. Muhammad Khurshid Kamal and another (1991 PCr.LJ Note 81 at p.56), this Court had observed that ordinarily in a complaint case the accused on having been summoned by Court is released on furnishing bail bonds, but such bail is of no avail to him in the connected challan case. As already stated elsewhere, the bail granting order militates against established principles for the grant of bail in a charge entailing capital punishment.

5. Resultantly, this petition is allowed and the impugned order, dated 30-3-2007 passed by the learned Additional Sessions Judge, Mandi Baha-ud-Din granting bail to respondent No.1 is hereby recalled. Respondent No.1 shall immediately be remitted to custody. N.H.Q./N-112/L Bail cancelled.