' This application has been moved by Sardar Abdul Hameed for the cancellation of bail granted to the accused-respondents by the learned Additional Sessions Judge, Abbottabad.
2. It may be briefly stated that report of the incident was made by Abdul Majid son of Said All in Police Station Mirpur at 15-25 hours on 28-10-1983 wherein it was stated that on the day of occurrence after attending the marriage ceremony of Aurangzeb son of Mohabbat resident of Aspadar, Sardar Farid, Sardar Rashid, Shah Sultan and Jebanzeb proceeded towards the general road where they came across Momin Khan, Ali Asghar sons of Ali Khan, Muhammad Salim, Irshad sons of Aziz Khan standing there duly armed with rifles and guns. All the four accused challenged Sardar Farid, Sardar Rashid, Shah Sultan and Jebanzeb and started firing at them. As a result Of this firing all the four persons received fire-arms injuries. Zaman son of Mah Wali, Gul Hassan son of Mir Abdullah, Zulfiqar son of Mir Alam residents of Maira Mirpur and Aspadar were stated to be the persons present on the spot and having witnessed the occurrence, Motive for the offence was given out to be the ill-feeling between the parties due to election rivalry. Initially case was registered against the accused under section 307/34, P. P. C. But subsequently when it was found that Sardar Farid and Sardar Rashid have expired as a result of their injuries, section 302, P. P. C.
Was added to the charge.
3. All the four accused charged for the offence made an application before the Illaqa Magistrate for their release on bail. The learned Magistrate on consideration of the material before him rejected the same vide his order, dated 26-12-1983. However, the learned Additional Sessions Judge, Abbottabad (Mr. Mir Gulab Khan), after hearing the arguments of the learned counsel for the parties allowed bail to all the four accused vide the impugned order.
4. I heard Mr. Zahurul Haq, Bar-at-Law assisted by Malik Saeed Akhtar, Advocate for the petitioner, Mr. Abdullah Jan Mirza, Advocate for Momin Khan accused-respondent, Mufti Muhammad ldrees, Advocate for Irshad and Muhammad Salim accused-respondents, Muhammad Akbar Khan Advocate assisted by Mr. Muhammad Ayub Khan Tana, Advocate for Ali Asghar accused- respondent and Mr. Muhammad Tariq, Advocate represented the State.
5. The learned counsel for the petitioner criticised the order of the learned Additional Sessions Judge and was of the view that in case the order in question is maintained there would be no necessity to proceed with the trial of the accused as the learned Additional Sessions Judge has positively arrived at the decision that this was a cross-case and that the accused have resorted to firing in self-defence, that he has assumed and has taken it for granted that the recoveries allegedly made from the roof of the houses of the accused suggests that the firing was made in self-defence. That the learned Additional Sessions Judge has also formulated two counter- versions of the occurrence and has extended, before the trial, the benefit of doubt to the accused- respondents. In this view of the matter it was argued that the order in question is in violation of the provisions of section 497, Cr. P. C. The learned counsel further argued that the F. I. R., the statements of the prosecution witnesses recorded under section 164, Cr. P. C. The medical evidence, the manner in which the occurrence took place, the recoveries from the spot and from the house of the accused and the counter-report lodged by All Asghar accused have totally been ignored which in fact are su cient grounds to believe that the accused are connected with the capital offence for which they are charged. That unnecessary importance has been given to the alleged recovery which was made after sufficient long time of the occurrence and also to the alleged injuries found on the persons of the accused party. It was lastly argued that in the bail matter the learned Judge was required to tentatively take into consideration reasonable ground for arriving at a finding whether there existed reasonable grounds to believe that the acccused have committed the offence for which they are charged or not. He was not required to go deep into the matter and make critical appreciation of the circumstances and to give its positive opinion about the case of the prosecution or the defence.
6. On the other hand, the learned counsel for the respondents in their arguments which took about 3 hours tried to justify the order of the learned Additional Sessions Judge. The report lodged by Ali Asghar was disowned and was stated. To be recorded by the Investigating Officer on his own record. It was also argued that private complaint has been moved before the Illaqa Magistrate by one Muhammad Rafique son of Lal Khan wherein counter-version of the occurrence has been brought to light. It was further- argued that the injuries on the persons of the accused party, the recoveries of empties from the roof of the houses of the accused, the recovery of two damaged vehicles from the spot supports the suggestion of the defence that the version given in the report lodged by the complainant is not an honest one. In support of their contentions that such factors have weighed with the Courts in granting bail to the accused numerous authorities of various High Courts and that of the Supreme Court were cited.
7. The learned counsel for Momin Khan, accused-respondent also prayed for the maintenance of the order of his bail on the additional ground of alibi and illness. The learned counsel contended that there is sufficient evidence available on the record to show that Momin Khan accused was not present in his village at the relevant time. Reliance was placed also on the Medical Certificate issued by the specialist in support of the serious illness of his client.
8. After hearing the learned counsel for both the sides and perusal of the record before me I have no hesitation in holding that the order of the learned Additional Sessions Judge is unsustainable on facts as well as under the law. In arriving at the conclusion reference can be made to the order of the learned Additional Session Judge dated 18-1-1984, wherein after reproducing the contention of the learned counsel for the accused in the last para. Of the order, he failed to set up the case for the prosecution consisting of the First Information Report, the statements of the eye-witnesses recorded under section 164, Cr. P. C., the medical evidence, the recoveries from the spot, the report lodged by All Asghar one of the accused and other attending circumstances. The learned Additional Sessions Judge straightaway took up the case of the defence and without adverting to the prosecution case dislodged all the aforementioned evidence for the prosecution. In dealing with the defence version also it was observed that admittedly all the accused-petitioners have been charged for firing but none of them have been attributed a specific role to the effect as to who was the person who fired effectively. It is very astonishing that in spite of the fact that two innocent persons lost their lives as a result of the firing for which all the four accused are directly charged the above fact prevailed with the learned Judge as a ground for granting bail to the accused. Similarly, the recoveries of empties from the roof of the houses belonging to the accused party, though this recovery was made after sufficient long time, as a ground, or in the wording of the learned Additional Sessions Judge, gives a smell, that the incident did not take place in the manner given by the prosecution. According to the learned Judge the alleged injuries on the persons of the accused party were held not to rule out the possibility that the accused acted in self-defence. However, the learned Judge totally ignored the earlier version given by Ali Asghar of the occurrence in which he did not attribute the injuries or the damage caused to the vehicles to anyone from the complainant party though the complainant party was known to the accused party as they had election rivalry. 'It was not the case of the defence that the complainant party was not known to Ali Asghar at the relevant time, In spite of the fact that the learned Judge has remarked that in criminal cases burden is on the prosecution to bring material on the file to connect the accused with the commission of the offence no effort has been made, as has been stated above, to refer to those mate, in his order placed before him by the prosecution. The learned Judge has further committed serious error in making the following observations :- "This being the position the attending circumstances of the case coming to light after the tentative assessm ent of the evidence of the prosecution there is a doubt that the accused-petitioners have acted in self-defers and the question of aggression and initiation can be well-settled during the trial."
' His observation that the accused party having won the election it w but natural for the complainant party to have launcded an attack upon the accused party, is illegal exercise of power by the learned Additional Session Judge and can debar him from the trial of the case. In this view of the matter the order of the learned Additional Sessions Judge, which is based on utter disregard of the material available on the record and is beyond the scow of the jurisdiction of the Court dealing with the bail matter, is set aside. The materials available on the record as has been referred to above are sufficient at this stage to connect all the four accused with the commission of the offence falling within the prohibition contained in sub-caluse (1) of section 397, Cr. P. C.
9. The case of Momin Khan accused, however, on the ground of his illness is worth consideration.
The plea of alibi for the time being has rightly been rejected by the Courts below and was left to be agitated at the trial. The certificates issued are not of unquestionable character to be accepted on the face of it, in the circumstances of this case. The medical certified of having been issued by a responsible Medical Officer showing that the accuse Momin Khan is suffering from heart disease, in my opinion is a ground o which the order of his bail can be maintained.
' Consequently the order of the learned Additional Sessions Judge granting bail to the three accused namely Ali Asghar, Muhammad Salim and Irshad is set aside. They are present in Court and are taken into custody and sent to judicial look-up to face the trial. The order of bail regarding Momin Khan accused-respondent is maintained solely on the ground of his illness.