HAZURDAD vs SAJID KHAN and others

' Respondents Nos.1 and 2/accused, brothers inter se, have been charged for having killed Mst.

Amaria, the wife of the petitioner/complainant, with lethal weapons, on 15-5-1994, vide F.I.R. No,270 lodged in Police Station, Shahbaz Garhi, under section 302/324/452/34, P.P.C.

2. After their arrest, both the accused were admitted to bail by the Additional Sessions Judge, Mardan, Mr. Fayyazullah Khan, by his order recorded on 19-9-1996, in Bail Application No,358 of 1996.

3. Resultantly, the petitioner has knocked at the door of this Court and filed this petition for the cancellation of to the accused. He has alleged that the order of the Additional Sessions Judge is arbitrary, perverse and a result of non-application of judicial mind and, therefore, liable to be set aside.

4. Mr. Muhammad Saleem Khan, Advocate learned counsel for the petitioner, Mr. Abdul Rauf Khan Gandapur, Advocate, learned counsel for the State (respondent No,3) and Mr. Fateh Muhammad Khan, Advocate learned counsel for respondents Nos.1 and 2 present and heard. Record of the case perused carefully.

5. It may be stated at the very outset that on examining the record of the case as well as the facts detailed in the impugned order of the Additional Sessions Judge, I am convinced in my mind that the Additional Sessions Judge has not taken into consideration the conditions laid down in section 497, Cr.P.C. For granting the bail. Additionally, he has totally ignored, intentionally or inadvertently, the dictum laid down by the Honourable Supreme Court, time and again, for the grant of bail. It would, therefore, be essential to reproduce the impugned order for its proper/appropriate appreciation. The relevant part of the said order is:-- ".... The main contention of the learned counsel for the accused-petitioners is that the investigation has been carried out against the accused/petitioner and case is complete and there is no need of accused/petitioner to keep them inside the jail. He further argued that the co-accused Marzuq Dad has already been given the concession of bail, and therefore, the accused/petitioners are also entitled to enjoy the concession of bail on the ground of principle of consistency. It is also strange to note that the complainant while lodging the report has specifically stated that she escaped unhurt with the firing of the accused. Hence, I am of the opinion that the case of the accused/petitioners is one of further inquiry and arguable for the purpose of bail. Therefore, I admit the accused/petitioners to bail in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of I/Magistrate.

(Underlining is mine).

6. A plain reading of the order would show that the Additional Sessions Judge has not applied his judicial mind to the facts of the case and in doing so he has failed to record a speaking order. He has even failed to notice that the F.I.R. Was not registered at the instance of the woman killed but was lodged by her husband namely, the petitioner, Hazurdad. This fact alone would show that the order was passed in haste. Furthermore, by holding that the case of the accused is that of further inquiry/arguable for the purposes of bail, the Judge patently fell in error in appreciating the relevant provisions of law laid down regarding the grant of bail (section 497, Cr.P.C.).

7. It is now well-settled that a case would only fall, within the scope of further inquiry, under section 497, Cr.P.C., if the Court reaches a conclusion that on the material before it there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence punishable with death, imprisonment for life or 10 years. In other words, in the absence of a finding to this effect there would be no occasion to hold that the case is that of further inquiry.

8. Admittedly, in this case both the accused have been directly/specifically charged for having murdered the wife of the petitioner, both in the F.I.R. And the statements of the P.Ws. Recorded under section 161, Cr.P.C. The mere fact that no specific injury on the person of the deceased has been attributed to one of the accused-respondents separately, could not, in the circumstances, make the case against them one of further inquiry. Accordingly it would be wholly immaterial as to whose shot proved fatal. On a tentative assessment of the material/record which is before me, it is not possible to come to the conclusion that reasonable grounds do exist for believing that the respondents Nos.1 and 2 have not committed the offence charged with. The submissions of the learned counsel for the respondents, in this regard, require deeper appreciation of evidence which is neither desirable nor permissible at this stage.

9. For the reasons stated above, I am of the considered view that the discretion exercised by the Additional Sessions Judge was neither exercised judiciously nor in accordance with the well- established principle of law. He has exercised this discretion wrongly and on assumptions contrary to the principle laid down by the apex Court of the country. Resultantly, his exercise of discretion is liable to correction. Additionally, the reasons given by him for releasing the respondents charged under section 302/34, P.P.C. On bail, are neither sufficient nor convincing. Reliance, in this behalf, is placed on the following judgments of the Supreme Court:--

(i) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182,

(ii) Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585,

(iii) Shahzaman and 2 others v. The State and another PLD 1994 SC 65,

(iv) PLD 1994 SC 88 and

(v) Haji Ghulam Khan v. Gul Daraz Khan and another 1995 SCM R 1765.

9. In view of what has been stated above, this bail cancellation application is accepted and the to respondents Nos.1 and 2 is recalled/cancelled.

10. Both the accused-respondents (Nos.1 and 2), present in Court, shall be taken into custody and sent to jail.

Bail cancelled.