SHADI KHAN Versus MATIULLAH

This is a petition under section 497(5), Cr.P.C. by Shadi Khan, petitioner for cancellation of bail granted to Maitullah (Matiullah) respondent, by the learned Sessions Judge, Bannu, on 28‑1‑1989.

2. The prosecution case in brief is that on 25‑4‑1988 after offering Digar prayers, Shadi Khan petitioner, his son Sakhi Jan, his co‑villagers Mohibullah and Sahib Gul went to the village pond where they found Matiullah respondent, his co‑accused Dilawar Khan, Habbullah and Said Akbar present duly armed with Topaks. When the complainant party got near them, Maitullah fired a shot at Sakhi Jan with which he was hit and fell dead. The other accused fired at the complainant but he escaped unhurt.

3. It may also be pointed out that Said Akbar, a co‑accused of the respondent, had also lodged a report in Police Station Lakki at 7‑45 p.m. wherein he alleged that after Digar prayers time Sa4i Jan deceased of the cross case and his two other companions had shouted at their guest Muhammad Ali Pawinda, at the village pond which resulted in grappling between Said Akbar, the first informant of this case and Sakhi Jan deceased. In the meantime, Rahamdil duly armed with pistol while Mirbaz empty handed emerged at the scene of occurrence and fired with his pistol at Said Akbar upon exhortation of Mirbaz with which besides Said Akbar, Sakhi Jan was hit and died. Said Akbar sustained an injury on his head which was declared to have been caused by blunt means.

4. During investigation of the case, the Investigating Officer examined on 3 5‑1985 Muhammad Ali Pawinda aforesaid in the case against the accused -respondent who exonerated him and instead maintained that Sakhi Jan had fired two shots at one Dur Muhammad and Pasham Khan but they were not hit. In the pandemonium that ensued, however, Pasham Khan fired a shot with his shot gun which hit Sakhi Jan and killed him.

5. The respondent after commission of the crime absconded till 5‑12‑1988 when his pre‑arrest bail was turned down by the learned Additional Sessions Judge. His application for bail after arrest did not find favour with the learned Sub‑Divisional Magistrate, Lakki who dismissed it on 17‑12‑1988. His plea was, however, entertained by the learned Sessions Judge, Bannu, who, vide his order, dated 28‑1‑1989 released him on bail.. The learned Sessions Judge while admitting the respondent to bail placed reliance on Badiuzzaman v. The State 1985 P Cr. L J 2624.

6. The Investigating Officer on 9‑11‑1988 also examined Aziz Khan, Saleh Khan, Adam Khan, Yen Khan, Nasrullah Khan, Shaista Khan, Sherin Khan, Mehmood Khan, Hazrat Umar, Adin Khan, Fiaz Muhammad, Baidullah Khan and Maqsood Ali in support of the plea of alibi raised by the respondent and found him innocent. In consequence he has since been placed in Column No.2 of ‑the challan.

7. Mr. Muhammad Khan Khakwani, the learned counsel for the petitioner, argued that the respondent not only has been named in the first information report but also has been assigned effective role of having fired with the topak alongwith his other three companions which has resulted m the death of the son of the first informant but he has luckily escaped unhurt. He also contends that the star‑witness of the respondent is a Pawinda who does not belong to the village of the parties; that his evidence smacks of concoction besides having been recorded after about a month. Similarly the evidence of the defence witnesses examined by the Investigating Officer on 9‑11‑1988 was attacked as nothing but a fabrication besides having been recorded after about six months of the occurrence. Lastly, the learned counsel maintained that the learned Sessions Judge has very conveniently ignored the noticeable abscondence of the respondent for more than six months and this alone deprives him of the concession of bail. Reference was made to Najib Gul v. The State 1989 S C M R 899.

8. Mr'. Ejaz Muhammad Khan, the learned Assistant Advocate‑General while, supporting the plea of cancellation of bail additionally submitted that opinion of the investigating Officer qua the innocence of the accused‑respondent and placing him in Column No‑2 of the challan was not binding on the Court because such opinion is not based on the soundness of the material which has been relied upon by the investigation Agency. He cited: (1) Muhammad Afzal v. Nazir Ahmad 1984 S C M R 429; (2) Abdul Malik v. The State 1985 P Cr. L J 1157 and (3) Farooq v. The State 1989 P Cr. L J 638 in support of this contention.

9. As against this, Mr. Sanaullah Khan Gandapur, appearing for the accused/respondent primarily relied upon Badiuzzaman v. The State 1985 P Cr. L J 2624 which was also referred to by the learned Sessions Judge in his impugned order to argue that when an accused person is placed in column No.2 of the challan, it is then a case of further inquiry within the meaning of section 497(2), Cr.P.C. and that in that case even the abscondence of the accused does not operate against him. In support of this contention, he invited my attention to the following observations of the august Supreme Court in the case of Najeeb Gul referred to above:‑

"Unfortunately, it has been ignored that noticeable abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Criminal Procedure Code or the offences is bailable otherwise. The grant of bail as of right under section 497(2) is possible only when a finding is rendered that `there are no reasonable grounds for believing that the accused has committed' the particular offence. When there is hesitation to record such a finding, one explanation might be that it is not possible. It is true that the higher Court might discover the material to sustain such a finding being recorded. Nevertheless, it would be more advisable: in order to show that the mint) is applied to this aspect, to at least mention it. Without such a finding the remark that `it is a case for further inquiry' is least helpful. Who can deny that further inquiry is also possible rather necessary in all those cases, where bail is refused because of the prohibition contained in section 497(1), Cr.P.C.? The relevant context of further inquiry in section 497(2) is the existence of `reasonable grounds that the accused has not committed' the offence. When a Court is not conscious or convinced of this aspect, mere further inquiry is of absolutely no avail to the accused for bail under section 497(2). Unfortunately, the Sessions Court and the learned Judge in the High Court have not understood the law in the right sense."

10. In Badiuzzaman's case 1985 P Cr. L J 2624 Abdul Karim Khan Kundi, J while referring to 1984 P Cr. L 4 1049, 1981 S C M R 565, 1982 P Cr. L J 529 and 1982 P Cr. L J 1162 was pleased to observe that `opinion of the Investigating Officers about the innocence of the accused have always weighed with the Courts in granting bail to the accused subject to the condition that it receives due justification from the material on record'. There is no cavil with the proposition enunciated in Badiuzzaman's case. The learned Judge distinguished the case reported in 1984 S C M R 429 and 1984 S C M R 521 in which the bail was granted after the finding that opinion of the Investigating Officer was based on sufficient materials on record. The learned Judge further observed that the said judgments do not report if the accused was arrayed in Column No.2 of the challan.

11. With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent and placed him in Column No.2 of the challan then he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in Column No.2 because at the time of the alleged occurrence he was found in another village. The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badiuzzaman's case referred to above. The, respondent has been assigned in the F.I.W. an effective role in the murder of the deceased and the charge is supported by the statements recorded under section 161, Cr.P.C. The belated statements of Muhammad Ali Pawinda P.W. and others referred to above are not prima facie based on sound material as held in Muhammad Afzal v. Nazir Ahmad 1984 S C M R 429. It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed a tendency that such a plea is advanced and relying on Badiuzzaman's case, the accused are being declared innocent and placed in Column No.2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No.2 of the Challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he had been charged.

12. In this view of the matter, I would accept this petition and set aside the order passed by the‑ learned Sessions Judge and cancel the bail granted to the accused‑respondent. He has been taken into custody and sent to the prison.

13. By a short order I have allowed this petition on 11‑6‑1989. The above are the reasons for the said order. '

N.H.Q./881/P Petition dismissed.