' NISAR HUSSAIN KHAN, J.---Petitioner seeks cancellation of bail of respondent No,2 Jan Muhammad through this quashment petition, who was released on his personal bond by the then SHO Police Station Banda Daud Shah, in case F.I.R. No,85, dated 1-5-2011, registered under sections 302/34, P.P.C. Petitioner has also filed Criminal Miscellaneous B.C.A. No,2 of 2011, titled, "Mst. Chand Bibi v. Gul Sated and others" for cancellation of bail of the respondents Gul Saeed, Akhtar Zaman and Zahir Gul, granted by learned Additional Sessions Judge, Banda Daud Shah Karak on 19-5-2011. As both the petitions arise out of the same. F.I.R., so are going to be disposed of by this common judgment.
2. The prosecution case as per report in the F.I.R. Is that, complainant Mst. Chand Bibi along with her husband Noor Shah Jehan and son Muhammad Sadiq Khan, was busy in farming work in her Peanuts field, situated in Speen Talab Farqa. In the meantime, Nasrullah and Jan Muhammad sons of Mina Gul, residents of Kotemakka, emerged, who were coming towards them; that on sighting the accused, her husband Noor Shah Jehan, started running towards his home, who was chased by both the accused; that when her husband reached at a distance of 30/40 paces from the complainant, the accused on reaching near him, started firing with their respective weapons, as a result of which, he fell down and succumbed to the injuries, at the spot; that both the accused decamped from the spot, after the occurrence. The motive of occurrence is a previous blood feud.
The occurrence was witnessed by the complainant and her son Muhammad Sadiq. On this report, case was registered under sections 302/34, P.P.C. Vide F.I.R. No,85 dated 1-5-2011.
3. I have given my anxious consideration to the exhaustive arguments of both the learned counsel for the parties and learned A.A.-G. And have gone through the record with their valuable assistance.
4. Firstly, I would take up Criminal Miscellaneous B.C.A. No,2-B of 2011, which has been filed for cancellation of bail of respondents-accused Gul Saeed,-Akhtar Zaman and Zahir Gul. At the very outset of his arguments, learned counsel for the petitioner/complainant stated that he would not press this petition to the extent of respondents Gul Saeed and Akhtar Zaman, as the complainant has effected compromise with both of them.
5. The perusal of the F.I.R. Reveals that respondent-accused Zahir Gul has neither been charged therein nor he has been shown present at the spot, at the time of occurrence. On 3-5-2011, Muhammad Sadiq son of the deceased and complainant, recorded his statement under section 164, Cr.P.C. Wherein he charged Akhtar Zaman, Saeed Gul and Zahir Gul, for providing assistance of conveyance to the accused. Even in his that statement, no particular role has been assigned to respondent Zahir Gul, except that he has got family relations with Naseerullah and Jan Muhammad. In view of this factual position, participation of respondent Zahir Gul in the commission of crime requires further inquiry into his guilt, which can only be determined after recording evidence, at trial. The learned trial Court has rightly extended him the concession of bail.
Thus, this BCA merits its dismissal.
6. Now the Quashment Petition No,1 of 2011, is taken up, whereby, Jan Muhammad son of Mina Gul, has been released on his personal bond by the SHO. The F.I.R is reflective of the fact that Jan Muhammad is directly charged for effective firing on the deceased, as a result of which, the deceased died at the spot. The occurrence was witnessed by two eye-witnesses i,e, the complainant and her son Sadiq Khan. During the investigation, blood-stained earth was taken into possession from the place of the deceased, while one crime empty of .303 bore rifle was recovered from .The place of the respondent-accused Jan Muhammad. The postmortem report of the deceased also support the version of the F.I.R, according to which, there are three fire-arm entry wounds on the person of the deceased. In light of direct charge by the eye-witnesses, supported by circumstantial evidence of recoveries of blood-stained earth crime empties and postmortem report, there is a prima facie case against the accused charged in the F.I.R. It appears from the record that Jan Muhammad respondent-accused moved and application before the DPO Investigation Karak, on which Incharge Investigation collected treatment record of the accused- respondent from CMH Peshawar. According to said record, he was under treatment for some problem in his kidneys and on the basis of that, the SHO released him on bail by obtaining his personal bond on 14-5-2011. When complete challan was submitted, respondent-accused Jan Muhammad has been placed in column No,3 of the challan, as a regular accused, and in E his remarks, the SHO has stated in the challan that accused has been released on bail due to his renal disease. It is clear from the remarks of the SHO in the challan, that he has not termed him as innocent nor any report under section 169, Cr.P.C. Has been prepared in his favour. In absence of such findings about the innocence of the accused-respondent, the SHO on his own whims, cannot release the accused, on obtaining his personal bond, who is directly charged in the F.I.R. For murder of the E deceased and there is ocular and circumstantial evidence against him. When there is sufficient ocular and circumstantial evidence in support of prosecution case and some evidence in favour of the accused about, his innocence, such controversy, can only be resolved by the competent Court at trial, after recording evidence. The SHO or Officer Incharge of Investigation, can only exercise their powers; under section 169, Cr.P.C. When the evidence in favour of prosecution case is deficient or 'there is no evidence at all, but it is not the situation herein. The SHO has abused the authority and flagrantly misused the power by releasing the accused on his personal bond, who is directly charged for murder of the deceased. Therefore, while exercising the jurisdiction under section 561-A, Cr.P.C. This Court is constrained to hold that the order of the SHO releasing Jan Muhammad respondent-accused on his personal bond is not sustainable, which is hereby quashed and the bail of the respondent Jan Muhammad is cancelled, who is taken into custody.
However, he may approach the proper Judicial Forum for his release on bail in the normal course of section 497, Cr.P.C. Needless to mention that the Courts below would not be influenced by any observation of this Court, made in the instant order, while dealing with the bail matters of the accused.
' For the reasons discussed above, B.C.A. No,2-B of 2011, is dismissed while, Connected Petition No,1 of 2011, is allowed. Both the petitions are disposed of accordingly. accordingly.