ASSADULLAH KHAN CHAMKANI, J.- Qari Hazrat Ali, Umar Ghani alias Ghani and Bahadar have applied for bail after they failed to secure the relief from the courts below being involved in case F.I.R. No, 246 dated 15-10-2012 under section 302/34, P.P.C., registered at Police Station, Kalkot, District Upper Dir.
2. Facts of the case are that on 1-7-2012 Hazrat Usman lodged a report that on the day of occurrence Ajmal Khan, Khan Muhammad and Tajbar, started firing at his house in order to criminally intimidate them as a result of which his house caught fire and two rooms therein were burnt to ashes. Thereafter, he along with Muhammad Nabi, Bhadar and Umar Ghani started chasing of the accused and on confrontation, both the parties started firing at each other due to fire shot of Muhammad Nabi, the proclaimed offender Ajmal Khan was hit and died on spot while on retaliation by the firing of Muhammad Khan and Tajbar his cousin Muhammad Nabi was hit and died on the spot, as such, case F.I.R. No,155 dated 1-7-2012 was registered at Police Station Kalkot under section 302/34, P.P.C.
It was on 11-9-2012, when Mst. Khan Bibi filed an application under section 22-A, Cr.P.C. Sought therein direction for registration of the case against the accused-petitioners along with one other for the murder of his son Ajmal Khan by making indiscriminate firing at him, however, alleged that firing of accused Hazrat Usman and Qari Hazrat Ali proved fatal. The learned Additional Sessions Judge/Justice of Peace, Dir Upper at Sheringal, vide order dated 10-10-2012 accepted the application and S.H.O. Police Station Kalkot was directed to register the second F.I.R. Regarding the occurrence and, as such, the above referred F.I.R. No, 246 was registered against the accused- petitioners along with others.
3. Accused-petitioners Qari Hazrat Ali, Umar Ghani alias Ghani and Bahadar were arrested in the case but they were refused bail by the Magistrate and the learned trial Court, thus, filed the instant petition.
4. Learned counsel for the petitioners argued that the petitioners are innocent and have falsely been implicated in the case. He further argued that courts below have not taken into consideration the cross version and delay in filing of the application under section 22-A, Cr.P.C. And just on stereo-type orders rejected their bail applications, according to him, the orders of the courts below are not speaking one He argued that the case of the petitioners comes within the ambit of further inquiry as the material available on record are not prima facie connecting them with the commission of offence and they are entitled to the concession of bail.
5. On the other hand, learned DAG appearing on behalf of the State and counsel for the complainant argued that the delay in lodging of the F.I.R. Has been explained and contents of F.I.R.
No, 155 by itself support the version of the complainant. They supported the impugned orders by submitting that bail has been refused to the petitioners on valid and cogent reasons because while deciding bail application court could resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence.
6. Arguments of learned counsel for parties heard and record perused.
7.Perusal of file would reveal that the occurrence took place on 1-7-2012 for which two F.I.Rs, have been registered. The first one bearing No,155 was registered on the report of. Hazrat Usman on the A same day while the second F.I.R. Was registered on 11-9-2012 after more than two months, vide order dated 10-10-2012, passed Justice of Peace, as such, there is considerable delay in lodging of the report. Besides the above, in case of counter versions arising from the same occurrence, it is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. For the reason that the question as to which version is correct is to be decided by the trial court during trial after recording of evidence. In the present case the contentions relating to the questions as to which version in the two F.I.Rs is correct and which party is aggressor are to be decided by the trial court after elaborate evaluation of the evidence, therefore, the case of the petitioners comes within the ambit of further inquiry. Indeed, Challan in the case has been put in court, however, the accused-petitioners have not yet been charge sheeted, meaning thereby that trial in the case has not yet commenced, however, if- an accused is entitled to the concession of bail on merits, then the factum of commencement of the trial would not constitute any legal bar to the grant of bail. Of course, courts are reserved in granting bail to the accused when trial of the case is commenced, but the apex court in a case reported in PLD 1989 SC 585 titled Muhammad Ismail v. Muhammad Rafique and another held that non-granting of bail after the commencement of trial primarily relates to practice of the court whereas the law does not make any bar on it. It has further been held that in the bail matter right of a person is involved and by virtue of law he claims it and where practice and rights go simultaneously the right would prevail.
8. In the present case learned Additional Sessions Judge, Dir Upper, rejected the bail application of the petitioners in a slipshod manner by writing a stereo type order, which is reproduced as under:-- "Record would show that trial is pending in this court and any findings given by this court can affect the merits of the case, therefore, propriety demands that no such findings should be given.
The record would show that the offence with which the petitioners are charged falls within the prohibitory clause of Section 497 Cr. P. C, hence, in the light of foregoing reasons, bail application is rejected".
' The learned trial court did not take pain to make tentative assessment of the case while deciding bail petition of the petitioners, In criminal law every person is innocent until his guilt is proved. It is the fundamental right of a person to let him enjoy life and liberty within the scope of rights as given in the Constitution, therefore, section 497 Cr.P.C. Envisages certain classes of accused persons who may claim to be entitled to concession of bail. The apex court in a case of Syed Ahmad Ali Rizvi and another v.. The State (PLO 1995 SC 500) has held that when an accused person becomes entitled to grant of bail then grant of bail is not a favour but becomes right of an accused person which cannot be refused on any other ground muchless hypothetical one. It is noted with concern that the learned Sessions Judges, who are ordinarily the trial Courts, did not take reasonable care while deciding the bail matter ignoring that they in the process deal with the liberty of a citizen and in cases where bail can be granted as of right they carelessly refuse bail when the accused is charged in the offences falling under the prohibitory clause of Section 497 Cr.P.C. Or in the offences of heinous nature without adverting to the entire materials collected during investigation and to make tentative assessm ent. Mere fact that the offence falls under the restrictive clause of Section 497 Cr.P.C. Or heinousness is no ground for refusal of bail but the other materials collected during investigation would have direct bearing on the charge against him, therefore, the Magistrates and the learned Sessions Judges shall discontinue the stereo type approach by jumping at the conclusion that the accused is directly charged in the F.I.R. And the offence falls under the prohibitory clause. They should carefully read the provisions of Sections 497 Cr.P.C. And for their guidance subsections (1) and (2) of section 497 Cr.P.C. Are reproduced below:-- S.497. When bail may be taken in case of non-bailable offence.- (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, (2)" If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
The expression "reasonable grounds for believing" are the words of high degree and bail can only be refused to an accused person if sufficient materials have been brought on record showing reasonable G ground to believe that the accused is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years while subsection (2) create an exception to the prohibition contained in the above subsection which provides that where the accused satisfied the court that reasonable ground are available to believe that he is not guilty of offence then the Court must release him on bail irrespective of the fact H that the offence falls within the prohibitory clause of Section 497, Cr.P.C. At the stage of bail deep scrutiny of evidence is not permissible nor is the requirement of law but at the same time the court of law is not precluded from tentative perusing the evidence of the eye-witnesses, the recovery witnesses, the medical reports, cross- version and the other connecting evidence and the plea of defense, if any, and to form a tentative opinion as to whether the accused is prima facie connected with the commission of offence or not.
The .Bail cannot be withheld as punishment in advance because the ultimate conviction and imprisonment of a guilty person can heal the wrong caused by a mistaken relief of interim to him but no satisfactory compensation can be offered to an innocent man for his unjustified confinement at any stage of the case, albeit, his acquittal in the long run.
8. Consequently, this bail applications is allowed and the petitioners be released on bail in case they furnish bail bonds in the sum of Rs,3,00,000/-(three lac) with two sureties each in the like amount to the satisfaction of trial Court, who shall ensure that the sureties are local, reliable and men of means.
' Additional Registrar of this Court is directed to circulate this judgment to all the Sessions Judges in Malakand Division. Copy of this judgment shall also be sent to the Additional Sessions Judge concerned for perusal.
' These are the reasons of my short order of even date.