2009 PLP 518 (MLD)

MUHAMMAD ALAM KHAN, J.

Faiz Muhammad accused/ petitioner, involved in case F.I.R. No.119, dated 20-10-2007 under sections 302/120-B/148/149, P.P.C. of Police Station Dadiwala, after the rejection of his applications for bail by the learned lower Courts vide orders, dated 16-4-2008 and 21-5-2008 respectively, has moved this Court for the same purpose through this Criminal Miscellaneous Bail Application No.128 of 2008. Likewise, the complainant Mst. Zaib-un-Nisa is also aggrieved of the same order of the learned Additional Sessions Judge-I Lakki, dated 21-5-2008, vide which Mst. Safina Bibi, Mst. Qamar-un-Nisa and Mst. Gul Asra, accused/respondents herein, were allowed bail in the said case and has questioned it to be recalled through Criminal Miscellaneous Bail Cancellation No.114 of 2008. Since both these petitions are the outcome of one and the same occurrence, therefore, this single judgment will dispose of both these matters.

2. On 20-10-2007 at 1030 hours, Mst. Zaib-un-Nisa complainant had made report about the occurrence to the effect that she lives with her husband in Mohalla Gul Wali Abad and on 19-10-2007, her brother Fahimullah had come to her house at 1200 hours on his motorcycle who remained with her for half an hour and told her that Imdadullah son of Naqibullah, resident of Landiwa had illicit relations with his sister Qamr -un-Nisa. He was forbidden time and again to restrain from his wrong activities but in vain and thus in order to threaten, had fired at him two months ago due to which Imdadullah was threatening him of dire consequences. It is further alleged that Fahimullah had told her (the complainant) that in case of his killing, Imdadullah was to be charged and under this advise he went to the village. At morning time, the complainant was informed on Mobile phone by her relatives that after killing Fahimullah by someone, his dead body was left on pakka road leading from Landiwa to Shamoni Khattak in front of the house of Khalid Siddique son of Kundal Khan of Landiwah. On receipt of such information, she reached the village and found her brother murdered. Thus she charged Imdadullah along with unknown persons for committing the murder of her brother Fahimullah vide F.I.R. ibid.

3. Learned counsel representing the petitioner Faiz Muhammad in the bail application and accused/respondents in the bail cancellation application argued that the petitioner/respondents are not charged in the first report by the complainant; that the alleged occurrence is unseen; that the alleged confessional statements of the female accused are the result of pressure and fear of police, contradicted to the supplementary statement of the complainant recorded under section 161, Cr.P.C. He submitted that the accused/petitioner/respondents had no enmity or ill-will with the deceased which is only assigned to accused Imdadullah by the complainant in her initial report. He urged that the subsequent introduction of motive by the female co-accused in their confessional statements recorded under section 161, Cr.P.C. not certified under section 364, Cr.P.C. is pre-planned after full consultation and deliberation and thus not believable. His submission was that neither the weapon of offence has been recovered at the instance of the accused/petitioner/respondents, nor any other incriminating article so as to connect them with the commission of the offence. He, therefore, urged that the case falls within the ambit of further inquiry entitling 'the petitioner and respondents to the concession of bail.

4. Learned counsel representing the complainant in the bail and petitioner in the bail cancellation application opposed the bail prayer of the petitioner Faiz Muhammad and the bail granted to the accused/respondents in the bail cancellation application on the grounds that although there is no direct evidence in the case but the accusation is duly supported by the circumstantial evidence. The offence falls within the prohibitory clause of section 497, Cr.P.C. and the accused are, prima facie, connected with the commission of the offence. 6(sic) I have gone through the record and considered the submissions of the learned counsel for the parties.

7. Perusal of the record reveals that though the accused/petitioner in the bail application is not named by the complainant in her first report, but she has categorically charged him in her supplementary statement recorded under section 161, Cr.P.C. for committing the murder of her deceased brother Fahimullah. The investigation conducted in the case and the materials so far brought on record, prima facie, connect the petitioner with the commission of the offence falling within the restrictive clause of section 497, Cr.P.C. which disentitle him to the concession of bail.

8. With regard to the bail cancellation moved by the complainant, suffice to say that the accused/respondents are female who are only charged for instigating co-accused Faiz Muhammad and for abetment in the commission of the offence. Above all, the accused/respondents, being women, have been admitted to bail by the learned Additional Sessions Judge in view of the amendment in section 497, Cr.P.C. by virtue of Ordinance No. XXXV of 2006, and thus no exception can be taken to the impugned order in this respect.

9. Consequently, I find no merit in either of the two petitions which are dismissed accordingly. The prosecution is, however, directed to submit complete challan in the case within one month, whereafter the trial Court is also directed to conclude trial in the case within four months positively after receipt of case file. In case some new thing cropps up during the trial, the accused/petitioner Faiz Muhammad will be at liberty to agitate his plea of bail afresh in the trial Court. H.B.T./43/P Petition dismissed.