1991 P Cr (PLP)

Muhammad Roshan Khan for Petitioner. Muhammad Anwar Khan for Respondents. Shahabuddin Burq O.S.D. (Law Officer) for the State. Date of hearing: 18th September, 1991. Accused-respondents Ziaullah and Imdad brothers inter se were directly charged by Raza Muhammad complainant for the murder of Tariq deceased by firing at him with pistols in furtherance of their common intention under section 302/34, P.P.C. The occurrence was witnessed by Raza Muhammad father of the deceased and Taj Muhammad and Mueezullah, the deceased's uncles besides others. Accused were released on bail by the learned S.D.M., Charsadda under observations that there were material contradictions in the report of the Presiding Officer and the complaint, Investigating Officer had given a different story in his note; occurrence has taken place at the spur of moment as a result of the altercation between the political parties with no motive behind the occurrence and that the parties were related to each other. The learned Additional Sessions Judge, Charsadda also did not cancel the bail under further observations that the complainant was silent regarding the actual incident happening in the courtyard of the polling station and that there were recovered different types of empties from the spot, suggesting cross-firing between the parties.

2. After hearing the learned counsel for the parties and going through the record I have found that there was submitted a report by Presiding Officer to the Returning Officer in the words that there had been going on a peaceful polling at the booths that an outlaw entered into the polling station at which there commenced an altercation between the Polling Agents Nasir Khan A.N.P. and Tariq P.P.P. who both took out their pistols, he tried to snatch the pistols from them but he did not succeed, that meanwhile they started firing in the air inside the room and afterwards they went outside. The Presiding Officer further stated that there was also firing outside, that as a result the P.P.P.'s agent Tariq the deceased was hit and he died and all the voters had also run away. He also stated that the Election Staff alongwith the Presiding Officer had taken refuge inside the room for safety. Now this report cannot be said to amount to any contradiction with the report contained in the F.I.R. which states that Tariq the deceased was a P.P.P.'s agent and Ziaullah accused was a Pakhtoon Khwah Milli Ittihad's agent, that there was an altercation between them, as a result they came out of the room where Muhammad Zaman father of Ziaullah and his brother Imdad accused respondents were present outside that under the command of Muhammad Zaman, Imdad and Ziaullah accused started firing at the deceased with their pistols, as a result he was hit and died on the spot.

3. The learned Courts below have further referred to the note of the Investigating Officer who has allegedly given some other story. The Investigation Officer was to casually mention that the deceased was rumoured to have been hit as a result of the fire shots of some outlaws. He has, however, not believed into the said story and has duly challaned the accused to face the trial. He has not declared the accused innocent. He has also not investigated into the said rumour.

4. Coming to the recoveries there were recovered a 7.62 bore freshly discharged empty from point A, two .30 bore freshly discharged empties from point B, four 9 mm freshly discharged empties from point C and a 9 mm bullet from point D. It was argued that the recoveries of different empties were to suggest cross-firing as also reported by the Presiding Officer that he had heard cross-firing from outside. Herein there have been found two .30 bore empties freshly discharged from point B which can be apparently attributed to pistol fires. These empties have further been recovered from places near and behind places of presence of the accused. The recoveries were apparently to strengthen the prosecution case.

5. That being the position, the material on record has been tentatively t found to spell out reasonable grounds connecting the accused-respondents with the commission of an offence punishable with death or imprisonment for life. The accused-respondents case is covered by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. which prohibits their release on bail. Now it is under subsection (2) of section 497, Cr.P.C. if at any stage of the investigation, inquiry or trial it is found that there are not reasonable grounds for believing that the accused has committed the non-bailable offence, including the offence covered by the prohibitory clause, and there are also sufficient grounds for further inquiry into his guilt that he shall be released on bail but the non- I existence of the reasonable grounds for believing that the accused has committed, the non-bailable offence is a sine qua non followed by open to further inquiry to entitle an accused to be released on bail under subsection (2) of section 497, Cr.P.C. Courts need not search out flimsy grounds for releasing accused charged for non-bailable offences and moreso when charged for offences punishable with death or imprisonment for life. In view of the above, this Court would accept the application, set aside the orders of the Courts below and cancel the bail granted to the accused respondents. They are present in Court and accordingly delivered into the custody of police. N.H.Q./1248/P Bail cancelled.