2001 P Cr (PLP)

3. Resultantly, a case under sections 302 and 201/34, P.P.C. was registered against the accused‑respondents and their mother Sughra Bibi vide F.I.R. No.664, dated 14‑6‑1999 at Police Station Abbottabad Cantt.

4. The local police Abbottabad on 13‑6‑1999 recovered a deal body lying near a dumping ground Abbottabad. On the following day the complainant identified the dead body to be of her missing husband. The dead body was subjected to post‑mortem examination the same day and time elapsing between death and post‑mortem examination was found to be between 72‑78 hours.

5. During the investigation 'of the case a Suzuki driver, namely, Muhammad Arif Khan son of Muhammad Akbar Khan, resident of Village Sheikhul Bandi Abbottabad in his statement recorded on 17‑6‑1999 under section 164, Cr.P.C. deposed that on 12‑6‑1999 at about 6 p.m. his co -villager Nargis Shah had asked him to bring his Suzuki in order to take his ailing niece to the doctor. When he went to the house of Nargis Shah at about 7 p.m., a dead body was brought out from the house and placed in the Suzuki. Sakhawat. Shah and Abid Shah accused‑respondents sat on the front seat of the Suzuki whereas a man and a woman occupied the rear seat and sat beside the dead body. He drew the Suzuki and the dead body was thrown by the occupants of the Suzuki at Kach Colony Abbottabad. He was asked not to disclose the matter to anyone.

6. Mst. Sughra Bibi and the accused‑respondents applied for grant of bail. Mst. Sughra Bibi was enlarged 'on bail whereas the prayer of the accused‑respondents was declined by order, dated 6‑1‑2000 of Judicial Magistrate, Abbottabad.

7. After being unsuccessful to get bail from the lower forum the accused‑respondents moved an application for grant of bail before the learned Additional Sessions Judge, Abbottabad which was accepted and they were released on bail vide order, dated 1‑3‑2000 which has caused annoyance to the complainant.

8. Mr. Shabbir Hussain Shah, Advocate appeared on behalf of the complainant. The State was represented by Mr. Muhammad. Ayub learned A.A.G. Mr. Ghulam Mujtaba Khan Jadoon, Advocate addressed arguments for the accused‑respondents.

9. Learned counsel for the complainant seeks cancellation of bail principally on the ground that in view of the material available before him, the learned trial Judge had no justifiable reason to accept the application of the accused‑respondents and release them on bail. Additionally, it has been urged that the medical evidence corroborated by the statement of Muhammad Arif Khan, driver: was sufficient to link the accused‑respondents prima facie with the murder of Latif Shah deceased. To substantiate the pleas, he relied on 1999 SCMR 338, 1998 PCr.LJ 746 (Peshawar), 1996 PCr.LJ 795 (Karachi) and 1984 PCr.LJ 2219 (Peshawar).

10. Learned A.A.G. for the State assisted by learned counsel for the accused‑respondents, on the contrary, defended the impugned order and maintained that due to lack of evidence, the learned trial Judge had valid reasons to allow the bail application and thus, the impugned order hardly calls for any interference. It was also added that the concession of bail has not been misused by the accused‑respondents and it is established practice of the superior Courts not to grant or cancel bail in a murder case, when its trial is to commence within a short time. Reliance was placed on 2000 PCr. LJ 1171 (Peshawar), 2000 PCr.LJ 1574 (Karachi), 2000 YLR 1252, 1998 Cr.LJ 339 (Lahore), 1999 MLD 979 and 1998 SCMR 1578.

11. Having heard the arguments and submissions of the learned counsel for the parties in the light of the rulings cited at the bar I find that the accused‑respondents are prima facie connected with the guilt and as such the learned trial Judge had no justifiable reason .to release them on bail notwithstanding the fact that Muhammad Arif Khan Suzuki driver fully implicates them with the guilt.

12. It is true that no one claims having seen the deceased in the company of the accused‑respondents and the prosecution case mainly rests on circumstantial evidence but the fact cannot be last sight of that Muhammad Arif Khan driver in his Magisterial statement recorded on 17‑6‑1999 has fully implicated the accused‑respondents with the guilt and confirmed having shifted the dead body of the deceased from the house of Nargas Shah to the dumping field at Salhad at the instance of Nargis Shah. He has also deposed that Sakhawat Shah and Abid Shah accused‑respondents had sat with him on the front seat of the Suzuki whereas a man and woman had occupied the rear seat and sat beside the dead body. 13: The mere fact the statement of the Suzuki driver has been recorded after 5 days of the shifting of the dead body; that the accused‑respondents have not misused the concession of bail and the trial is to commence within a short time, by itself constitute no valid ground for allowing bail to the accused‑respondents who are otherwise prima facie associated with the guilt. The order granting bail is contrary to the evidence on record from which a prima facie case of involvement of the accused‑respondents is made out.

14. The case‑law cited on behalf of accused‑respondents proceeds on different facts and speaks of the different situation. It is of no help to the accused‑respondents. I accordingly, agree with the learned counsel for the complainant that it is not a case for the admission of the accused‑respondents on bail who are prima facie liable under sections 302 and 201/34, P.P.C. which fall within the prohibitory clause of section 497, Cr.P.C.

15. The application of the complainant is accepted and the bail granted to the accused‑respondents per the impugned order, is recalled.

16. Sakhawat Shah and Abid Hussain Shah accused‑respondents are present in Court whereas Nazir Hussain Shah is stated to be in jail. The present accused‑respondents be taken into custody and sent to jail to await their trial.

17. I would like to make it clear that all the observations made in this order are to be taken for the purpose of disposal of this application alone and would have no bearing at the stage of trial. The learned trial Judge shall form his own opinion on the basis of evidence produced before him. N.H.Q./223/P Bail cancelled.