1990 P Cr. L J 428

[Peshawar]

Before Muhammad Ishaq Khan, J

SAID QAYYUM Petitioner

Versus

GHANI SHAH and another Respondents

Criminal Miscellaneous No. 562 of 1989, decided on 2nd December, 1989.

(a) Criminal Procedure Code (V of 1898)—

—-S. 497(5)—Penal Code (XLV of 1860), S.302/307/34—Bail, cancellation of–Sessions Court

deeply discussed merits of case by misreading of record–Explanation of delay in making F.I.R. by

complainant was ignored—Observation of police that it was a cross-case was incorrect—Sessions

Court also ignored medical examination describing nature of injuries as a result of fire-arm and that

even a sharp wound could be caused by a fire-arm—All these questions could be better answered by

Trial Court after recording evidence and no positive conclusion could be expressed about the same

at bail stage—Accused was directly charged and complainant’s version was supported by

eye-witnesses—Accused had also remained fugitive from law for more than two months—Strong

motive prima facie was also present connecting accused with commission of offence which fell

within prohibitory clause of S.497, Cr.P.C.—Bail allowed to accused was cancelled in

circumstances.

(b) Criminal Procedure Code (V of 1898)—

—-S. 497—Bail on the point of abscondence alone can be refused to an accused.—[Abscondence]

P L D 1989 Pesh. 10 rel.

Mian Mohibullah Kaka Khel for Petitioner.

Khalil Khan Khalil for Respondents.

Miss Musarrat Hilaly for the State.

Date of hearing: 2nd December, 1989.

JUDGMENT

Said Oayyum son of Abdul Khaliq, petitioner, has riled the instant application against the order of Additional Sessions Judge, Charsadda, dated 228-1989 whereby he granted bail to Ghani Shah, accused-respondent, in case F.I.R. No. 142, dated 11-5-1989 of Police Station Tangi, registered against him under section 302/307/34, P.P.C.

2. Brief facts of the case are that Said Qayyum, petitioner, lodged a report in Police Station Tangi on 11-5-1989 at 14-30 hours to the effect that he alongwith his nephews was present in his house whereas his mother Mst. Tajriyan was sitting in the nearby `Chappar’ when in the meantime they heard a row from the outside. The complainant and his two nephews, namely, Fazal Hakim and Abdul Hakim came out of the house and saw Ghani Shah, accused-respondent, alongwith his two sons Farooq and Akbar Khan (absconders) duly armed with fire-arm weapons. On seeing the complainant party all the three accused opened indiscriminate firing at them with which Mst. Tajriyan was hit and injured. The complainant and his other two companions, however, escaped unhurt. The casualty was removed to the Civil Hospital, Tangi. The doctor in the Hospital after giving necessary treatment to the injured discharged her from the hospital but on reaching home she succumbed to her injuries after a while.The motive behind the incident is that on the same day at morning time one Muhammad Yousaf, who is the first cousin of the complainant in this case had allegedly fired at Ziarat Shah son of Ghani Shah and others, and so as to take revenge of the same they fired at the complainant party.

3. The learned counsel for the petitioner has also placed on file the copy of FI.R. No. 141, dated 11-5-1989. recorded at 7-45 a.m. in which Ziarat Shah son of Ghani Shah has also charged Muhammad Yousaf besides 20 other persons for firing at his party thereby killing and injuring some persons from them.

4. The bail application submitted by the accused-respondent before the Ilaqa Magistrate resulted in dismissal vide orders, dated 25-7-1989. However, the learned Additional Sessions Judge, Charsadda bailed out the accused-respondent vide his impugned order, dated 22-8-1989.

5. The learned Additional Sessions Judge had discussed in his bail order the delay in lodging the report as well as contradiction between the medico-legal report as well as post-mortem examination of the deceased lady.

6. In my view, at bail stage, detailed discussion about the merits of the case will definitely prejudice the case of the prosecution one way or the other, about which the superior Courts have already taken note of in a series of judgments. In this case the learned Additional Sessions Judge has held that the F.I.R. has been lodged with inordinate delay for which no explanation is available on record. He has also observed about the medical report that the first wound was caused by fire-arm as it had an entrance and exit while the other two wounds, according to the Medical Officer, were caused by sharp means. He also compared this report with the post-mortem examination of the deceased and came to the conclusion that the existence of two fire-arm injuries though different in dimension from the one given in the initial medico-legal report, will certainly make the case of the accused-petitioner arguable for the purpose of bail, more particularly when the other allegations of the complainant also do not find support from the existing material collected by the Investigating Officer.

7. Obviously, the learned Additional Sessions Judge has deeply discussed the merits of the case and that too by misreading of the record available to him about the delay he has ignored the explanation of the complainant party that in a small hospital, no police official was on duty at that time to record the statement of the injured lady and when they reshifted the casualty to their house, thereafter they lodged the report. From the F.I.R. itself it appears that the deceased lady was taken to Civil Hospital, Tangi alongwith a prepared injury-sheet, which means that Mst. Tajriyan was also taken to police station, but as she was in precarious condition, therefore, her statement could not be recorded and she was rushed to the hospital for medical treatment.

8. The observation of the police that it is a cross-case is also not correct because from the present material, no doubt, it is a connected offence to the earlier one, but not at all the result of cross-firing.

9. The learned Additional Sessions Judge has also ignored the fact that even a sharp wound can because by means of fire-arm. He has also ignored the medical examination in which the doctor has described the nature of injuries as a result of fire-arm. However, in my opinion, only the trial Court would be in a C better position to answer all these questions after recording of the evidence in the case and it is not the proper stage to express any positive conclusion about the same. At present, it is sufficient that the accused-respondent is directly charged and the version of the complainant is supported by the eye-witnesses of the occurrence, coupled with the fact that the accused-respondent has remained fugitive from law for more than 2 months. On the point of abscondence alone bail If can be refused to an accused, as has been held in P L D 1989 Pesh. 10 (January Part) as under:–

(d) S. 87 — Abscondence, commencement of—Warrant under 5.204, Cr.P.C. issued and evidence having been recorded to the effect that accused is concealing himself with the purpose of avoiding service of such warrant—Accused, hold, would be deemed to be absconder in the eve of law.

(e) Ss. 302 & 149/148–Bail, cancellation of–Accused having become fugitive from law, lost their normal rights under substantive law Unexplained noticeable abscondence disentitled accused to the concession of bail notwithstanding merits of the case, if any. In this case too proceedings under section 204, Cr.P.C. were initiated against the accused-respondent and the evidence of the police officials was recorded whereafter proclamations under section 87, Cr.P.C. were also issued against him. There is also nothing on record that the accused has voluntarily surrendered himself to the police.

10. Besides this, at this stage it cannot be said that there is no motive. Keeping in view the circumstances of the case under which an hour earlier to the present incident, Ziarat Shah, son of the accused-respondent had charged the first cousin of the present complainant alongwith others for killing 4 persons and also E causing injuries to Ziarat Shah, is a strong motive for the commission of the offence and prima facie the accused-respondent is connected with the crime and his case, therefore, falls within the prohibitory clause of section 497, Cr.P.C. In presence of the recovery of blood from point No.2 in front of the house of complainant, the non-recovery of the empties or pellet marks on the walls of the house of the complainant would not bring the case of the accused-respondent within the scope of `further inquiry.

11. For the aforesaid reasons and without prejudice to the merits of the case, I accept this application and cancel the bail of the accused-respondent because the learned Additional Sessions Judge, has not properly exercised his discretion in allowing bail to the accused-respondent. The accused-respondent is present in Court, taken into custody and sent to judicial lock-up, as under-trial prisoner. The prosecution agency is directed to submit complete challan against the accused respondent in a competent Court as early as possible.

N.H.Q./934/P Bail cancelled.