1996 P Cr (PLP)

Mufti Muhammad Idris and A.A.-G. for the State. Date of hearing- 15th October, 1995. Petitioner herein, has sought cancellation of bail granted to accused respondents Nos.1 to 6 by the learned Sessions Judge, Abbottabad vide his order, dated 27-2-1995 in case F.I.R. No.28, dated 9-1-1995 under section 302/ 324/34, P.P.C., Police Station Cantt., Abbottabad.

2. As per F.I.R. No.28, dated 9-1-1995 Taveez Khan complainant reported at 7-30 p.m. in Civil Hospital, Abbottabad that he alongwith his wife Mst. Bala Nista, and nephews Gul Khan and Zarif Khan were going home at Nariyan, Abbottabad in Motor Car No.RIT 8143 and when they reached near Paki Gali at about 6-00 p.m. they were fired at by the unknown persons with klashnikov as a result of which Zarif Khan and Gut Khan were killed at the spot while Mst. Bala Nista was seriously injured. The culprits thereafter ran away in the darkness of night. On i1-1-1995 Noor Khan in his statement under section 161, Cr.P.C. charged the present respondents. Their application for bail was rejected by M.I.C., Abbottabad on 8-2-1995, whereafter they approached the Sessions Court for the grant of bail which was allowed and the accused respondents were released on bail. The complainant-petitioner has now approached this Court for the cancellation of bail granted to the accused respondents.

3. Learned counsel for the petitioner contended that although the accused-respondents were not charged in the F.I.R. by the complainant yet Noor Khan on 11-1-1995 in his statement under section 161, Cr.P.C. charged all the accused as an eye-witness for the commission of the crime. According to his statement on the eventful evening he, while returning home saw the accused-respondents duly armed standing on the open plot. In the meantime motorcar came, which was signalled by Aslam accused to stop and when the car was stopped Ziarat Gul and Mala Khel commanded the accused party to fire whereupon accused Haji Kooba Gul, Malang Khan and Haji Awal Khan fired and killed Zarif Khan and Gul Khan injured his mother Mst. Bala Nista. Peru He stated that due to fear he did not disclose about the occurrence. Learned counsel urged that klashnikov was recovered from the house of Malang Khan accused about which the Fire-Arms Expert has reported that the crime empties were fired from the said weapon. He also referred to the statement of Mst. Bala Nista who has also charged the accused-respondents for the commission of the offence. He submitted that in such circumstances there are reasonable grounds to believe that the accused-respondents are guilty of the offence punishable with death or imprisonment for life therefore, they are not entitled to the concession of bail. and their bail requires to be recalled.

4. Learned counsel for the accused-respondents contended that as for the statement of Mst. Bala Nista is concerned it is not worth reliance as it was recorded after 6 days of the occurrence. Likewise the statement of Noor Khan is also not worth consideration as he deposed as an eye-witness after two days. He submitted that admittedly the occurrence has taken place at pitch dark night which the complainant himself has admitted in the F.I.R. that the unknown accused fled away due to darkness of night, therefore, in the attending circumstances both the statements at this stage cannot be given any value. As for the recovery of weapons vis-a-vis the Expert report are concerned, they too cannot be taken into account at this stage as expression of any opinion about the same would amount to pre-empting the duty of the trial Court and it may prejudice the trial. He argued that the crime empties were recovered on the same very night but the same were not sent to the Forensic Science Laboratory immediately and were kept in Malkhana for considerable time. After the recovery of klashnikov on 4-2-1995, the weapon and the crime empties were sent to Laboratory with considerable delay, which were received there on 7-3-1995. The crime empties should have been sent to the Laboratory soon after their recovery and upon the recovery of weapon it could be sent to find out whether the same were fired with the said weapon, '1 'he retention of empties and their despatch alongwith weapon and that too with considerable delay cast doubt upon the recoveries. Learned counsel further argued that the post-mortem reports of the two deceased and the medico-legal report of the injured reveal that they received injuries on the backsides, whereas they were allegedly fired from the front side of the car. He submitted that the learned Sessions Judge has properly exercised his discretion and there being no allegation of the misuse or abuse of bail, the order deserves no interference from this Court.

5. I have given due consideration to the submission of the learned counsel for the parties. I find substance in the arguments of the learned counsel for the respondents. The accused-respondents have: not been charged in the F.I.R. on the ground that there was pitch dark at the time of occurrence. Noor Khan who is son of the injuries lady came forward after 2 days of the occurrence claiming to be an eye-witness who cannot be given any consideration for, had he seen the occurrence, he would have disclosed the names of assailants immediately as his very close relatives were killed and injured. Similar is the position regarding the statement of Mst. Baia Nista, when the complainant who escaped unhurt could not identify the accused in the dark night, now could a lady who sustained serious injuries identify the accused. I would refrain to dilate in detail on the evidentiary value of the material so far brought on the record, lest it may not prejudice the case of the A either party. Moreover, it is duty of the trial Court to appreciate the evidence at the trial. On tentative assessment of the evidence placed on record, I do not find any unreasonableness or impropriety in the exercise of discretion by a competent Court in granting bail to the accused respondents. The respondents are on bail for the last about eight months and there is no allegation that they have abused/misused the concession of bail in any manner. In consequence to the above, this application fails, hence is dismissed. N.H.Q./1864/P Petition dismissed