MUHAMMAD SIDDIQUE vs MUHAMMAD AJMAL and others

'MIAN FASIH-UL-MULK, J.---Petitioner Muhammad Siddique is seeking cancellation of bail of respondents Muhammad Ajmal son of Mehmood and Sajjad s/o Farooq, who were simply granted bail by the learned Sessions Judge, Mansehra, vide order, dated 16-4-2009 in case F.I.R. No,196 dated 30-7-2008 under section 302/34, P.P.C. Registered in Police Station Phulra, District Mansehra.

2. Briefly stated the facts of the prosecution case are that on 30-8-2008 at 14.15 hours petitioner Muhammad Siddique reported that on the day of occurrence he, along with his brother Ashraf and other inmates of the house, was present in their house when before Dopehr Vela Sajjad s/o Farooq came and asked Ashraf that his uncle Muhammad Ajmal is calling him at Kutehra. After some time Ashraf with his wife Phullan Bibi and Sajjad started towards Kutehra. At 14.30 hours his sister-in-law Phullan Bibi informed him that her husband Ashraf has been murdered by Sajjad and Ajmal with the fires of Kalashnikovs in the house of Muhammad Hamayun. Motive was stated to be previous blood-feud enmity between the parties.

3. Learned counsel for the petitioner contended that the respondents are directly charged for causing brutal murder of deceased with lethal weapons. It was further contended that respondent No,1/ accused manipulated the plea of alibi by producing a certificate from Executive Officer of his Department, which was never verified by the Investigating Officer. It was further added that the learned Sessions Judge without formally admitting respondents Nos.1 and 2 to bail, directed them to furnish bail bonds in violation of sections 497/498, Cr.P.C. Learned counsel next argued that the conduct of respondents Nos.1 and 2 is apparent on record which disentitled them to the concession of bail, firstly they obtained transit bail from the Court of Sessions Judge, Islamabad and did not appear before the Court of Sessions Judge, Mansehra, secondly they remained fugitive from law and proceedings under sections 204 and 87, Cr.P.C. Were carried out against them and, thirdly, on appearing they made false statement that they have been released on bail. Lastly, the learned counsel prayed that the impugned order of the learned Sessions Judge is against the norms of justice and is liable to be set aside. Reliance was placed on 1998 PCr.LJ 752, PLD 1986 Peshawar 64, 1985 PCr.LJ 1157, PLD 1974 SC 62, PLD 1990 SC 83 and PLD 1994 Peshawar 268.

4. On the other hand, the learned counsel for the respondents opposed the contentions raised by the petitioner and contended that the petitioners are regularly attending the Court proceedings and concession of bail was rightly extended to the respondents on merits as it is a concocted and blind murder case. It was further argued that the trial is in process and once the bail is granted by the trial Court, exceptional circumstances are required to recall the same. Reliance was placed on 2002 SCMR 1381, 1980 SCMR 203 and 1982 SCMR 440. Learned State counsel supported the arguments of learned counsel for the petitioner.

5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

6. A perusal of record would show that the respondents are directly charged in a promptly lodged F.I.R. For the brutal murder of deceased Ashraf with lethal weapons. The respondents obtained transit bail from Sessions Judge Islamabad on 15-8-2008 and 19-8-2008 respectively but never appeared before the competent Court for its confirmation or otherwise. The respondents, since the date of occurrence, never joined the investigation. A certificate regarding plea of alibi was produced before the Investigating Officer who did not deem A it proper to verify the same. Nobody stood behind this certificate, yet the Investigating Officer placed both respondents at his own in column No,2 of the Challan. It is strange to note that the trial Court without looking into Challan, framed charge against both the accused without ascertaining the legal position as to whether the accused were sent for trial or otherwise and whether the accused were in custody or on bail. The learned Sessions Judge, Mansehra vide impugned order dated 16-4-2009 wrongly directed the respondents to furnish bail bonds without serving any notice upon the legal heirs of deceased which has not only adversely affected the interest of deceased party but is also against the principles of natural justice.

7. Resultantly, this bail cancellation petition is allowed and bail granted to respondents vide impugned order dated 16-4-2009 is recalled. They are present in Court and are taken into custody.

They were sent to judicial lock-up for facing trial vide short order dated 25-1-2010.

' In the facts and circumstances of the case, the Investigating Officer of the case is directed to properly investigate the case and submit Challan in accordance with law within fourteen days. The accused/ respondents would, however, be at liberty to approach the trial Court and pray for their release on bail, if they so desire. Needless to mention that the trial Court would decide such application strictly in accordance with law. These are the reasons for my short order.