1. ' MUHAMMAD RAZA KHAN, C J.---Through this single order I propose to decide this bail application (Cr. Misc. No,41 of 2008 Muhammad Khan v. State etc.) and the connected bail cancellation application (Cr.Misc. No,1226 of 2007 Mst.Bibi Jana v. Sher Muhammad) as both have arisen out of the same F.I.R. No,32 dated 12-5-2007 under section 302/34, P.P.C. Of Police Station Shah Salim, District Karak.
2. ' In the background of these petitions lies a murder case registered vide F.I.R. Mentioned above in which the complainant Mst. Bibi Jana had directly charged the petitioner Muhammad Khan as well as accused Sher Muhammad (who is respondent in the connected petition) for the murder of her brother Sher Bahadur deceased. The role of commanding the commission of murder was assigned to petitioner Muhammad Khan, whereas the role of murder by using firearm was attributed to Sher Muhammad accused.
3. ' The learned counsel for the petitioner argued that there was a delay of about one and a half hour in lodging the report, whereas the distance from the place of occurrence to the police station could be covered within a couple of minutes, therefore, it indicated pre-mediation, consultation regarding the charge against the accused and fabrication of evidence. He further argued that Muhammad Khan petitioner was not charged for the role of effective firing whereas the charge of "Lalkara" was also not proved because at the time of occurrence the petitioner was at Lahore, as per affidavit furnished on his behalf. He also added that the deceased was reportedly sitting, while inlet and exit wounds No,7 were not possible in a sitting position, thus the medical evidence has belied the contents of the F.I.R. He also pointed out that the major role has been attributed to Sher Muhammad, who has been granted bail and, on the principle of consistency, the petitioner also deserves to be released on bail.
4. ' While defending the grant of bail to Sher Muhammad respondent, the learned counsel stated that he has not misused the concession of bail and since the trial has commenced, therefore, in accordance with the established practice, the bail order may not be disturbed. He finally pointed out that Sher Muhammad respondent was on duty at Miran Shah and the documentary evidence, so furnished along with certificate of the Commandant, confirmed that at the time of occurrence, he was on duty, therefore, naming him in the F.I.R. Falsifies the charge against Muhammad Khan (petitioner) as well.
5. ' The learned A.A.-G. Resisted the petition for release of Muhammad Khan petitioner on bail. He argued that being a daylight occurrence, it was witnessed by the complainant who was a natural witness as the incident took place in front of her house and since there was no or enmity between the parties, the possibility of false implication stands excluded. He also resisted the plea of alibi as well.
6. The record shows that the question of delay was of no material significance because the occurrence took place at 9-30 a.m. And the matter was reported in police station at 10-45 a.m. The complainant was a lady of advanced age and her brother was killed in her presence, therefore, the shock and trauma of a dejected sister could be well imagined, but still she took the dead body of her brother to the police station and reported the matter within an hour or so and, keeping in view the distance of three or four kilometers and non-availability of transport in such a far flung area, the time, so spent, is fully justified as there was no reason to doubt the same.
7. ' The locale of entry and exit wounds is also not beneficial to the petitioner merely for the reason that a person, sitting on a cot in village, was neither a statue nor was he paralyzed. Such a living person was supposed to re-act naturally by seeing a visitor by greeting him if he was a friend or by protecting himself if he was a foe. He cannot be believed to remain seated in any case. When he gets up and receives the bullet, the entry and exit wound No,7 shall be justified.
8. The plea of alibi of Muhammad Khan petitioner is not believable because the affidavit is not supported by any other proof of the presence of the petitioner at Lahore. The plea of alibi raised by Sher Muhammad respondent in the connected case is also doubtful. There is clear interpolation in the attendance register maintained in his establishment. The figures '11.5' in the date '11-5-07' have been overwritten and the subsequent date 12-5-07' have also been interpolated. Even otherwise, the gap of more than twenty four hours between the time of termination of duty on one day till its resumption the next day, does not exclude the possibility of going away to village and returning back to the Unit, because the certificate issued by the commandant merely indicates that the person was on duty, because he had not proceeded on leave. There is no document that at the specific time of occurrence he was on duty.
9. ' The learned Additional Sessions Judge, while granting bail to Sher Muhammad, respondent in the connected case, has gone deep into the facts and the documentary evidence with regard to his plea of alibi was not free from doubt, but keeping in view the principle that once the bail is granted, certain special circumstances shall be required for the cancellation of bail because the ingredients required to be established for recalling the concession of bail have not been fulfilled in this case.
10. There is a mere assertion that the respondent was threatening the complainant and her family, but it has not been substantiated. Therefore, the bail already granted to Sher Muhammad respondent cannot be recalled despite the fact that there were strong reasons for his detention. Similarly, the fact that the role of mere command was attributed to Muhammad Khan, who may, otherwise, be considered for the concession of bail, however, the same can be denied only for the reason that he, being in a commanding position, had no reasons to order the killing of the deceased. Moreover, the motive, being hidden in his mind, does not justify the action of doing away with the life of an innocent person. Therefore, there was no cause to interfere with the impugned orders.
11. ' Thus, while dismissing the request for release of the petitioner on bail and simultaneously dismissing the request of the complainant for the cancellation of bail of the respondent, particularly when the trial has commenced, the propriety demands that the present position may be maintained for expeditious conclusion of the trial and, therefore, the learned trial Court is advised to conclude the trial within a period of four months positively.
12. ' I, therefore, dismissed both the petitions accordingly.