' SARDAR SHAUKAT HAYAT, J.---This bail cancellation application has been filed by Mst. Wagma widow of the deceased, namely, Usma n whereby the accused/respondents were released on pre- arrest bail by the learned Additional Sessions Judge, Tangi vide order dated 4-3-2010 in case F.I.R.
No,470 dated 26-10-2009 registered under sections 302/324/34, P.P.C. At Police Station Mandani, District Charsadda.
2. Briefly facts of the case are that on the report of one Ismail/ complainant (later on transposed as accused) son of Aminul Haq brother of the deceased Usman, a case vide F.I.R. No, 470 dated 26-10- 2009 registered under sections 302/324/34, P.P.C. At Police Station Mandani Charsadda was registered against respondents 1 and 2 (also real brothers of the complainant) whereby the complainant reported that he along with his brother Usman (deceased) were busy in work at the roof of their Hujra, meanwhile his other two brothers, namely, Suleman and Romail came up on the roof and started firing at them with the intention to kill. Due to the fire shots, Muhammad Usman brother of complainant was hit and died on the spot while complainant escaped unhurt. The occurrence was also witnessed by other inmates. Motive for the occurrence is dispute over Hujra.
Applicant Mst.Wagma widow of the deceased Usman, also moved an application to the Illaqa S.H.O., stating therein that she is also witness of the occurrence and an action be initiated against the accused/respondents. However, after the occurrence both the accused absconded.
3. Later on, mother of the deceased and complainant filed an application before the Judicial Magistrate, Tangi stating therein that on the day of occurrence her sons Romail (accused) and Usman (deceased) were busy in some work at the roof of the Hujra, when his other son Ismail (initially complainant) came on the roof of his room and fired at Romail and Usman. Due to the firing, Usman was hit and died on the spot. She disclosed the motive that there were strained relations between Usman (deceased) and his wife Wagma and on the instigation of Mst. Wagma Ismail fired at Usman and killed him. She further stated in her application that on the day of occurrence she narrated the same story before the police at Police Station Mandani but the police has wrongly charged the accused/respondents 1 and 2 and it was requested that action be initiated against Ismail. This application of Mst. Benazira was dismissed by the Judicial Magistrate vide order dated 10-12-2009 against which revision was filed before the revisional court, which was accepted vide order dated 9-1-2010. The statement under sections 161 and 164, Cr.P.C. Of Mst.
Benazira were recorded wherein Ismail (complainant) was charged for the murder of her son Muhammad Usman with the motive of illicit relations of Mst. Wagma wife of deceased with Muhammad Ismail (complainant). Muhammad Ismail was also transposed as accused in the instant case by the police.
4. The police also proceeded against the accused/respondents 1 and 2 under sections 87/204 Cr.P.C., however, both set of accused applied for pre-arrest bail through two separate applications before the learned Additional Sessions Judge, Tangi. The learned Judge vide order dated 4-3-2010 rejected the BBA filed by Ismail accused and confirmed the BBA of accused/respondents Suleman and Romail, hence the instant application by widow of deceased for cancellation of the impugned order dated 4-3-2010.
5. Learned counsel for petitioner argued that the impugned order of the learned Additional Sessions Judge is illegal, against the principles of law on the subject. The impugned order is partial one as allowing BBA to one set of accused and refusing it to the other set of accused. That the application dated 8-12-2009 filed by mother of the deceased at such a belated stage when claims to be the eye-witness of the occurrence is a concocted one. That from site plan it reveals that from the spot where the accused/respondents are stated to have fired at Usman (deceased), 7 empties of kalashinkov are recovered whereby the report of fire arm expert also indicates that crime empties were fired from different 7.62 MM bore weapons. He further argued that there exists no mala fide in charging the accused/respondents for the murder of deceased Usman.
6. Learned counsel for accused/respondents Nos. 1 and 2 argued that initially the statement given by Mst. Benazira, mother of deceases was not recorded by the police so she had to go to the Magistrate for registration of case against Ismail accused. He further argued that it is an act of single person and the accused/respondents Nos. 1 and 2 have been charged with mala fide intention. That from record no where it appears that the said concession allowed to the accused/respondents Nos. 1 and 2 have been misused. The learned counsel supported the impugned order of learned Additional Sessions Judge, Tangi.
7. The learned A.A.-G. Supported the arguments of learned counsel for petitioner and argued that there exists no mala fide in charging the accused/respondents Nos. 1 and 2. It is not an act of one person as the fire arm expert opinion negates the contention of learned counsel for respondents Nos. 1 and 2 and prayed for recalling of the BBA granted to accused/respondents Nos. 1 and 2.
Arguments heard and record perused.
8. From the perusal of record, it transpires that the incident in the present case had taken place on 26-10-2009 at 0730 hrs where the report regarding the occurrence was lodged by Ismail accused (then complainant) at 0840 hrs who charged both the accused/respondents Nos.1 and 2 for firing at him and his brother Usman, which resulted into the murder of his deceased brother. During investigation while preparing the site plan, police recovered 7 empties from the spot. The Fire-arm Expert opined that the empties were fired from different 7.62 MM bore weapons, as record suggests that the act of firing on them is not an act of one person but of at least two. Both the accused/respondents Nos. 1 and 2 being the brother of deceased, after the occurrence, instead of showing their innocence and charging the complainant for the murder of their brother Usman, as mother of the deceased Mst. Benazira in her statement described Romail one of the accused/respondent present at the spot with deceased Usman when deceased was fired at by Ismail/accused, did not appear before the police and absconded for considerable time.
9. Mother of the accused/respondents Nos. 1 and 2 claiming herself to be the eye-witness of the occurrence moved an application for registration of case against Ismail accused after about 1/2 month of the occurrence, alleging that she had reported the matter to police but on record no such-like report for registration of case against Ismail accused exists. It cannot be believed that the police was in search of accused/respondents Nos. 1 and 2 and proceedings against them under sections 87 and 204, Cr.P.C. Were initiated by the police while the parents were unaware about the report of murder of deceased Usman by the accused (then complainant Ismail).
10. The learned trial Court without looking into the matter as discussed above relied on the statement of the parents of accused/respondents Nos. 1 and 2 and declaring the possibility of mala fide by Ismail accused in his report against their brothers accused/ respondents Nos. 1 and 2, granted BBA 'to accused/respondents while rejected the BBA to Ismail accused. One of the basic consideration in BBA is mala fide on the part of complainant and the police. It must appear from the record that element of mala fide, false involvement, arrest with motive of humiliation and malicious prosecution is present.
11. In the instant case specific role of firing has been attributed to the accused/respondents which allegedly caused the death of the deceased Usman, coupled with other material on record tentatively connecting the accused/respondents for commission of offence mentioned in the F.I.R.
This court holds that there exists no possibility of mala fide charge by Ismail accused against the accused/respondents Nos. 1 and 2, hence the instant application is allowed and the impugned order dated 4-3-2010 passed by learned Additional Sessions Judge, Tangi is recalled/ withdrawn to the extent of accused/respondents Nos. 1 and 2.