' Through this bail cancellation application petitioner Muhammad Ali Khan son of Jawahir Khan of Chandu Khel, Tehsil Lakki, District Bannu seeks the indulgence of this Court for cancelling the bail granted to Nangar Khan son of Almar Khan and his son Rehman of the same village who were charged with an offence under section 302/34, P.P.C. The two accused respondents were granted bail by order, dated 13-10-1983 of E.A.C. And Magistrate First Class, Lakki. Aggrieved by the said order the complainant moved an application for the cancellation of the said bail order to the Court of Additional Sessions Judge, Lakki who, however, per his order, dated 17-5-1984 dismissed the application and hence the instant petition.
2. On 24-6-1983 at 23-35 hours complainant Muhammad Ali Khan lodged a report in P.P. Gambila to the effect that at 'Pashin Qaza' time an altercation took place between Muhammad Siddique his brother and Nangar Khan and his son Rehman over a dispute on children; that after an hour at 'Digar Walla' he alongwith Muhammad Siddique and his brother Kemal Khan came out of their- house in order to offer 'Diger Prayers' in the adjacent 'Baithak' which was used for the purposes of prayers. In the meantime Hukam Khan son of Khan Muhammad, Rehman son of Nangar Khan armed with 'Topaks' and Nangar Khan empty-handed appeared on the spot and Nangar Khan directed both Hukam Khan and Rehman to kill Muhammad Siddique at which Hukam Khan and Rehman fired a shot each with which Muhammad Siddique was hit and he fell down dead to the ground. Since both Muhammad Ali and Kamal Khan were empty handed they could not do anything and all the 3 accused decamped from the spot and went inside their house. The motive for the offence was reported as previous blood feud enmity as also altercation that had taken place earlier that date. The occurrence was further reported to have been witnessed by Muhammad All the reporter and his brother Kamal Khan. The report was incorporated in the F.I.R.
No, 63 of P.S. Tajori. Hukam Khan accused was arrested on the following day during the house search while the other two namely Nangar Khan and Rehman were reported as fugitive from law.
Hukam Khan moved a bail application in the Court of the Illaqa Magistrate which was granted to him. Feeling aggrieved by the said bail order the complainant moved a bail cancellation application in the Court of Additional Sessions Judge at 'Lakki and while that petition was yet pending adjudication the two accused respondents also surrendered to the authorities and on their application for bail they too were admitted to bail by the order of the Illaqa Magistrate, dated 13-10-1983. The complainant moved another application to the Court of the Additional Sessions Judge at Lakki challenging the order granting bail to the two accused-respondents as well. The learned Additional Sessions Judge, Lakki cancelled the bail granted to Hukam Khan but rejected the prayer for cancellation of the bail granted to the two accused-respondents.
3. I have heard the arguments of the learned counsel for the petitioner, and the learned defence counsel as also the learned State counsel. Record of the case has also been examined.
4. The two accused-respondents are directly charged in the F.I.R.Alongwith Hukam Khan their companion. The occurrence is reported to have taken place at 'Digar' time and the report was lodged at P.P. Gambila at 23.35 hours. The distance between Police Post and the spot is 6/7 miles.
The Illaqa Magistrate was pursuaded in granting bail to the accused-respondents by the delay that has occurred in lodging the report. In Muhammad Sharif v. The State 1980 SC MR 313, the delay of even two days in lodging the F.I.R. Was not considered to entitle the accused/respondents to bail.
It was held that:- "We do not see any merit in these submissions for the reason that even though there has been delay in reporting the incident, the petitioner is clearly named in the F.I.R. As being one of the assailants of the deceased."
' In this case to the two accused-respondents along with their companion Hukam Khan, as already observed, have been clearly charged for the murder of the deceased. The learned Magistrate besides the point of delay in support of his order allowing bail gave a very strange argument in that:- "It is also admitted by the complainant that the petitioner Rehman had fired the second shot and the first shot was fired by Hukam Khan who has already been released by this Court but it is not revealed that which of the shots was proved effective. Hence the case needed further enquiry."
' It is all the more pertinent to point out that the liability of either of the two who had fired shots at the deceased is to be determined at the trial and even if for arguments sake it is presumed that the prosecution has not been specifically able to prove the effective shot at the hands of either of the accused, the application of section 34 is there and presently the accused-respondents particularly at the bail stage cannot take advantage of the situation as to with whose shot the deceased was hit. It cannot be disputed that the murder was committed and it is yet to be proved that despite direct charge against them in the F.I.R. They are falsely implicated. In Baboo v. The State 1981 SCM R 849 it was held that:- "As the allegation against the petitioner is that he had joined the unlawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed to him or not. Although the Investigating Officer is said to have found him innocent, yet the name of the petitioner was not shown in column No,2, but, in column No,3 as a regular accused. No benefit can, therefore, accrue to the petitioner on the basis of the opinion formed by the Investigating Officer during the Investigation."
' In the instant case as well there is a direct charge of committing the murder of the deceased by the accused with their common intention and, therefore' the order of the Magistrate that since it has not been specifically alleged as to with whose shot the deceased was hit is immaterial for all intents and purposes.
5. It is proved from record that the two accused-respondents absconded after the commission of the offence and finding their companion Hukam Khan who was directly charged in the F.I.R. Being admitted to bail, their case falling at par with that of Hukam Khan they readily surrendered themselves to the local police mindful of the situation that they would also be released on bail.
6As stated earlier Rehman and Hukam Khan are directly charged in the F.I.R. For firing at and committing the murder of Muhammad Siddique (deceased). Instantly there is no material on record to differentiate the role played by each of them in the commission of the, crime and their joint liability in murdering the deceased or any of them, is a matter yet to be proved at the trial.
Therefore, without entering into the detailed merits of the case I feel that the release on bail of Rehman accused-respondent was not justified, both on facts and the, law and therefore the bail granted to Rehman accused-respondent is recalled. He is present in the Court and is remanded to judicial custody as under trial prisoner. However, the case of Nangar Khan accused respondent stands quite on different footing. Even in the F.I.R. He has been specifically mentioned to be though present at the spot but empty handed. The possibility of involving him in the offence alongwith his son cannot altogether be excluded. Any how the role attributed to him is open to further probe. I, therefore, do not feel inclined to cancel his bail once the discretion has been used in his favour. This petition is accordingly partially accepted to the extent that the bail of Rehman accused- respondent is cancelled while the application against Nangar Khan is dismissed.
Order accordingly.