FAIZ MUHAMMAD Versus GUL KHAN
The petitioner sought leave to appeal against an order of the Peshawar High Court dated 19th September 1978, whereby bail granted to him in a murder case by the Additional Sessions Judge was cancelled. The core legal question was whether the High Court erred in cancelling the petitioner's bail despite alleged previous enmity between the petitioner and his co-accused which rendered the prosecution story improbable. The Supreme Court held that the High Court was justified in cancelling the bail because the injured complainant directly attributed a firearm injury to the petitioner in a broad-day occurrence, and no enmity or reason for false substitution was shown between the complainant and the petitioner. The Supreme Court laid down the principle that where an accused is directly charged with an effective firearm injury by an injured witness in a broad-day incident, and no plausible ground for false implication by the complainant is established, the accused is prima facie connected with the crime and is not entitled to bail, notwithstanding any antecedent disputes or enmity with co-accused persons.
- Whether bail can be cancelled when an accused is directly charged by an injured complainant for an effective firearm injury?
- Does prior enmity between an accused and a co-accused automatically render the complainant's allegation against the accused improbable for the purpose of granting bail?
- Is an accused entitled to bail on the ground of further inquiry when there is no suggestion of enmity between the complainant and the accused?
ORDER
1. ANWARUL HAQ, C. J .‑The petitioner seeks leave to appeal against an order made by a learned Judge of the Peshawar High Court on the 19th of September, 1978, whereby bail granted to him by the learned Addl. Sessions Judge, Nowshera, in a pending murder case was cancelled.
2. In the First Information Report made by the injured person Salamat Khan on the 15th of March, 1978, the fire‑arm injury sustained by the complainant was attributed to the petitioner, although it was alleged that his co‑accused, namely, Baland Khan and his son Momin Khan were also present at the spot. The learned Additional Sessions Judge allowed bail on the ground that in a case previously registered by the police it was alleged that there was enmity between the petitioner and his co‑accused Baland Khan, and that there had been, in fact, firing between the parties, and, therefore, it was not probable that the petitioner could have joined Baland Khan and his son for attacking the complainant Salamat Khan. This view has not, however, appealed to the learned Judge in the High Court, who has observed that the petitioner was directly charged by Salamat Khan for effective firing, and hence not entitled to bail.
3. The main ground urged before us by the learned counsel for the petitioner is that although the petitioner is named as the person who had injured the complainant by a fire shot, yet the learned Judge in the High Court was in error in not taking note of the improbability of the story narrated by the complainant in view of the previous incident between the petitioner and his co‑accused. The learned counsel submits that in the circumstances it was clearly a case for further inquiry.
4. We regret, we do not see any substance in these submissions. Whatever be the state of feelings between the petitioner and his co‑accused, the fact remains that in a broad‑day occurrence the complainant Salamat Khan received a fire‑arm injury on his thigh, and be attributed it to the present petitioner. There is no indication on the record as to why the complainant should falsely substitute the present petitioner for the real assailant, and no suggestion of enmity between the petitioner and the complainant has been put forward at this stage. As a result the learned Judge in the High Court was right in taking note of the fact that on the allegations made against the petitioner he was prima facie guilty of an offence punishable with imprisonment for life and, accordingly, not entitled to bail.
5. As a result, the petition fails and is hereby dismissed.
6. Petition dismissed.