BAHADAR KHAN Versus ABDUL SUBHAN

Haji Bahadar Khan, petitioner herein, father of Arshad deceased, has ed the present petition for cancellation of pre-arrest bail granted to the accused-respondent Abdul Subhan, by the learned Additional Sessions Judge, Mardan vide order, dated 18-11-1993.

2. Briefly stated, the prosecution case is that at 22-45 hours on 23-7-1993 Usmanzada complainant alongwith Aishad Khan deceased, Haji Bahadar Khan petitioner and Wahid Ali, was on his way to his house in a jeep when the accused-respondent alongwith his co-accused emerged on the road, the scene of occurrence, and after raising Lalkara, all of them started firing at the complainant with their klashnikovs, with which Arshad deceased was hit and died on the spot, while the others escaped. Motive for the offence is blood feud enmity between the lodger of the F.I.R. and Farzand Ali, co-accused of the accused-respondent.

3. I have heard the learned counsel for the petitioner; the accused respondent as well as the State and have also perused the record. Admittedly, the occurrence took place at 22-45 p.m. whereas the report was lodged in the police station at 2-00 a.m., i.e. after about four hours, which delay is yet to be explained by the prosecution. The learned Additional Sessions Judge while confirming the pre-arrest bail of the accused-respondent has taken into consideration the documentary proof furnished by him in support of his plea of alibi. The Investigation Officer examined Muhammad Kamal Khan, Commander Civil Defence, who verified the certificate issued by him with regard to the staying of the accused-respondent in C.D. Rest I-louse, Islamabad from 19-7-1993 to 22-7-1993. Likewise, Lt.-Col. Shamsul Akbar Sadiq admitted before the Investigating Officer to have issued a certificate to the accused-respondent for accompanying him from Rawalpindi to Abbottabad on 22-7-1993 and dire to his indisposition getting him admitted in Civil Hospital, Haripur where he remained for two days. Dr. Inayatullah, Surgical Specialist, verified about the admission of the accused-respondent in the hospital and testified that he remained in the hospital till 24-7-1993. The Investigating Officer has opined that the complainant party in the case due to political rivalries has involved the accused-respondent. Although observations of the police cannot be taken as legal evidence and have no binding force, yet the same can be taken into consideration at bail stage as an attending circumstance having persuasive value. In the case where the element of false involvement or motive of humiliation is traceable, then the Courts can E grant pre-arrest bail. The plea of alibi has been taken during investigation of the case, which seems to be reasonable, therefore, the trial Court in view of F the dictum laid down in Akram Khan's case 1978 S C M R 242 has properly I exercised its discretionary jurisdiction.

4. The record shows that the investigation in the case is complete and final report has been prepared for submission in Court, in such circumstances G too, cancellation of bail would not serve any purpose especially when there is no allegation of misuse or abuse of the concession of bail.

5. Consequently, finding no force in this application, it is dismissed.

N.H.Q./1630/P Petition dismissed.