HAIBAT KHAN Versus HAJI NAWAZ KHAN

Through this criminal miscellaneous petition Haibat Khan son of Ghulam Hassan, has prayed for the cancellation of bail granted to Hall Nawaz Khan son of Khanmir resident of Isa Khel, Tehsil Lakki, District Bannu by the order, dated 26‑4‑1984 of Mr. Ziauddin Khan, Additional Sessions Judge, Bannu.

2. On 1‑2‑1984 at 1300 hours petitioner Haibat Khan lodged a report in Police Station, Lakki to the effect that at about 11.00 a.m. he alongwith Rasool Khan was busy in their land cutting gram for cooking when in the meantime Adam Khan and his father Nawaz Khan armed with Topaks came there and after giving a 'Lalkara' that the deceased would not be spared that day, Adam Khan fired a shot with which the deceased was hit and fell down to the ground. Immediately thereafter Nawaz Khan also fired a shot which too hit the deceased who died there and then. The accused thereafter decamped from the spot. Motive for the offence was that daughter of Nawaz Khan accused was married to the brother of the deceased and about two years prior to the occurrence the relations between the spouses had become strained which resulted in the instant occurrence.

3. Both the accused after the commission of the occurrence absconded. Nawaz Khan accused /respondent however surrendered on 25 ‑2‑1984 and he applied for release on bail to the Court of the Illaqa Magistrate who however per his order, dated 1‑4‑1984 rejected his bail application The accused respondent thereafter approached the Court of learned Additional Sessions Judge, Bannu at Lakki who however granted him .the bail as aforesaid. Feeling aggrieved by this order complainant Haibat Khan has approached this Court for the recall of the bail order.

4. I have heard the learned counsel for the petitioner, Muhammad Ishaq Khan Kundi, for the accused/ respondent and Muhammad Saleem, Advocate on behalf of the State.

S. The learned Additional Session Judge while granting bail to the accused /Despondent was mainly persuaded in his conclusion by the opinion of the I.O. who had in his report declared Haji Nawaz Khan accused/ respondent to be innocent and falsely implicated in the case and the fact that he was kept in column 2. The accused /respondent is directly charged in the F.I.R. for firing at the deceased. He absconded after the commission of the crime and while his son co‑accused is still fugitive from law he surrendered to the Police after about more than 24 days. While dealing with the bail application Courts are not expected to go into the details of the merits and to grant bail just on conjectures or presumptions. In the instant case besides direct charge against the accused /respondent he is clearly charged for effectively firing at the deceased. In Muhammad Yaqoob v. The State N L R 1980 SCJ 49 it was held

"The petitioner then moved the High Court for bail. The learned Judge in the High Court, after perusing the F.I.R., came to the conclusion that apart from the Lalkara, it was also alleged in the F.I.R. that the petitioner himself had fired a shot at the deceased, but the shot missed the deceased. In the circumstances the provisions of section 34, P.P.C., were, prima facie, attracted and there were reasonable grounds to believe that the petitioner was guilty of an offence punishable with death or imprisonment for life."

In the instant case however besides a 'Lalkara' the respondent accused is charged for effectively firing at the deceased. In Baboo v. The State 1981 S C M R 849 it was held:‑

"As the allegation against the petitioner is that he had joined the unawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed to him or not. Although the Investigating Officer is said to have found him innocent, yet the name of the petitioner was not shown in column No.2, but in column No.3 as a regular accused. No benefit can, therefore, accrue to the petitioner on the basis of the opinion formed by the Investigating Officer during the investigation."

As the facts of the instant case reveal the opinion of the Investigating Officer rendering the accused /respondent as innocent is not based on material on record to support his views therefore the learned Additional Sessions Judge was not correct in releasing the accused /respondent on bail on the opinion of the Investigating Officer particularly when there is a clear charge of effective firing at the deceased.

6. In the aforesaid circumstances I am of the firm view that prima facie case does exist against the accused/ respondent and his case is not arguable for the purposes of bail for all intents and purposes at this stage. It is to be determined at the trial whether the accused; respondent has been charged just with his son with a view to entangle as many members of the family of the accused as can reasonably be justified. In any case it was not a fit case in which bail should have been granted. Therefore without going into further detail of the case accept this petition and recall the bail granted to the accused/respondent. He is present in Court. He has been taken into custody and remanded to jail as under‑trial prisoner.

M.A.K. Bail cancelled.