1983 PCr (PLP)

Inamullah Khan and Mahmood Shah for Respondent. Bashirullah Khan, the A: G. for the State. Date of hearing : 22nd January, 1983. Khalil‑ur‑Rehman, petitioner, has moved this application for cancellation of bail granted to accused‑respondent Ibrahim son of. Sikandar Khan, by the learned Additional Sessions Judge, Peshawar, vide order dated 31‑7‑1982. The accused‑respondent stands charged under section 302, P. P. C. vide F. I. R. No. 253 dated 6‑7‑1982.

2. Khalil‑ur‑Rehman petitioner lodged a report on 6‑7‑1982 to the effect that be got the information in his village Sheikh Muhammadi that his brother, Abdus Salam deceased, who was a driver in the Police Department, had been murdered on Kohat Road by some one. He, however, did not charge any body in this report. It was on 11‑7‑1982 that Khalil‑ur‑Rehman and Muhammad Jamil, brothers of the deceased; charged Muhammad Ibrahim, accused‑respondent, for committing the said murder.

3. Learned Additional Sessions Judge while granting bail to the accused respondent vide the impugned order recorded that although statements of Dost Muhammad, Sanaullah, Shamsur Rehman and Sharif Ahmad have been recorded but they also did not charge anybody for committing the murder of the deceased except that an unknown Head Constable who was in uniform had done this. .

4. Learned counsel for the petitioner assailed the impugned order by arguing that although nobody is charged in the F. I. R. but subsequently the accused‑respondent has been named for committing the murder of the deceased.

5. On the other hand, learned counsel appearing for the accused respondents argued that his client is not charged in the first information report; that there is no ocular evidence in this case whatsoever against the accused‑respondent; that there is no circumstantial evidence too against him; that subsequent charge against the accused‑respondent by the complainant party is that they have come to know that the accused‑respondent has com mitted the murder but they have not given the source of information by which they have received such information and that the witnesses who have alleged seen the accused‑respondent in uniform have not recognized him as the person who had committed the murder. In fact, no identification parade has so far been conducted in the present case. He also argued that the suspicion however strong would not prove the guilt of the accused‑respondent and the benefit of doubt if there is any, would be given to the accused‑respondent. In support of his arguments, he cited the following authorities of the Supreme Court of Pakistan. In Ch. Abdul Malik v. The State (P L D 1968 S C 349) it was held, However, if it is found that the charge is groundless, i.e. to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly, where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr. P. C., in which case again bail should not be withheld". In Amir v. The State (P L D 1972 S C 277) it has been held by their Lord ships that "for the purposes of bail, law is not to be stretched in favour of the prosecution. If any doubt arises, it must go to the accused". The learned counsel also argued that it has been held time and again by the superior Courts that bail should not be withheld as a punishment

6. Learned Assistant Advocate‑General appeared for the State and he supported the cancellation application. I have gone through the statements of the various prosecution ;witnesses recorded by the Police and examined the other record carefully. In my opinion, the impugned order is not open to any exception because the learned Additional Sessions Judge, who passed the same against the accused respondent needs further inquiry and probe to connect him with the commission of the crime. Mere absence from duty is not enough to hold the accused respondent responsible for the murder of the deceased, the punishment of which is forfeiture of life. The prosecution will have to connect the accused‑respondent with the commission of the death of the deceased by evidence of unimpeachable character.

7. The net result of the above discussions is, that at this stage case against the accused respondent is of further inquiry and probe into his guilt. Therefore, I refrain from interfering with the discretion exercised by the learned Additional Sessions Judge in favour of the accused respondent. The bail cancellation application is accordingly dismissed. Application dismissed.