' ATTAULLAH KHAN J.---Haji Gul Zaman Khan complainant/petitioner has filed this application under section 497(5), Cr.P.C. For the cancellation of pre-arrest to Dolaat Khan and Farman Ali, accused/respondents, by the learned Sessions Judge Tank vide order dated 29-6-2010 in case F.I.R.
No, 485 dated 5-9-2009 of Police Station Tank registered under sections 302/34, P. P.0 .
2. According to the report lodged by Haji Gul Zaman Khan complainant/petitioner on 5-9-2007 at 530 hours, he along with his son Sher Khan and nephew Gul Nawaz Khan were busy in offering 'Digar Prayer' in the village Mosque when in the meanwhile accused Jehan Khan, Muqarab Khan, Daulat Khan and Farman duly armed with Kalashnikovs entered the Mosque and opened fire at his nephew Gul Nawaz with which he was hit and died on the spot. Motive for the offence was given to be dispute the same morning over the turn of irrigating water.
3. Learned counsel for the petitioner argued that this Court vide order dated 2-8-2010 passed in Bail Cancellation Application No, 247 of 2010 has already recalled the to the accused/respondent Jehan Khan who was attributed 'the same role as assigned to the present accused/respondents.
According to the learned counsel, the lower Court has not taken into consideration the principles laid down by the Superior Courts for bail-before-arrest and bail-after-arrest, therefore, the impugned order is liable to be set aside.
4. On the other hand, learned counsel for the accused/respondents contended that on merits, the accused/respondents deserve bail which need not to be cancelled.
5. I have gone through the record carefully and considered the arguments of the learned counsel for the parties.
6. The order of this Court dated 2-8-2010 is before me. In this case, pre-arrest bail of the accused/respondent was confirmed by the learned Sessions Judge Tank which was challenged in this Court and was recalled. It has been held by this Court that no ill-will or mala fide was attributed which is the only criteria for confirmation of pre-arrest bail, therefore, it was recalled.
7. Similar is the case of the accused/respondents whose role is identical to that of Jehan Khan accused taken into custody by this Court.
8. Learned counsel for the accused/respondents has agitated the recovery of only one empty while two accused are charged, opinion of the Investigating Officer and medical evidence.
9. In my opinion, these arguments could at the best be taken into consideration in post-arrest bail cases, because the principles for grant of pre-arrest bail and post-arrest bail are totally different.
In pre-arrest bail matter, the Court is supposed to examine as to whether the accused has proved mala fide on the part of the complainant or prosecution or false involvement. In this case no such plea was taken or proved on the record.
10. The record shows that the accused/respondents are directly charged by the complainant for committing the murder of the deceased while offering 'Digar Prayer' in the village Mosque. The occurrence is of a broad-daylight with no question of mistaken identity and the report was lodged with all reasonable promptitudes.
11. Tentative assessm ent of the materials so far brought on record prima facie connect the accused/respondents with the commission of the offence and they are thus not entitled to the concession of bail.
12. Consequently, this application is accepted and the pre-arrest to the accused/respondents is recalled. They are present in Court, taken into custody and remanded to judicial custody. They are, however, at liberty to file regular bail application before the competent Court of law if they so wished which shall be decided independently on its own merits.
Bail cancelled.