' Gul Akhtar son of Abdul Ghafoor complainat has made this application under section 497(5), Cr.P.C. For the cancellation of to accused/respondent No,1 in an offence under section 307, P.P.C. For which he is charged in F.I.R. No,161, dated 12-8-1985 for Police Station Naurang, District Bannu.
2. Report of occurrence was lodged by Gul Akhtar at 8-25 hours wherein he stated that on the day of occurrence while he alongwith his brother Siyal Khan were proceeding from their village to Serai Naurang, and reached near the house of Sahib Shah lying on the thoroughfare of Mama Khel, all of a sudden Sultan Khan son of Mani Khan, his co-villager, emerged who was armed with topak. Both of them were apprehended and ordered not to pass that thoroughfare and simultaneously tired at the complainant with his topak with an intention to kill him as result of which he was injured on his left hand and right side of the ribs and fell down on the ground. Sultan Khan accused thereafter decamped from the spot towards his Ice Factory. It was on 29-9- 1985 that the accused made an application for bail before arrest in the Court of Sessions Judge Bannu in which he raised the plea of alibi and further stated to have been mala fldely involved in the case. It has further been alleged in the application that the police has declared him to be innocent. Motive for false charge was not given, however, it is stated that he is a respectable person, sitting Member of the Union Council and was previously Chairman, that he is a man of means, i.e. He is the owner of an Ice Factory. The learned Sessions Judge, vide his order, dated 12-1-1985 confirmed the interim bail earlier granted to the accused respondent by him.
3. Learned counsel for the petitioner contended that the accused is directly charged for having effectively fired at the complainant who is supported by the eye-witness mentioned in the F.I.R. And the medical evidence available on the file. Furthermore the recovery of bullets from the spot and long abscondance of the accused just after the commission of the offence and the evidence has 40 been judiciously noticed in allowing bail before arrest to the accused. It was further contended that there is nothing on the record to suggest that the charge against the accused is male fide and in the circumstances that only one person is charged for effective firing, the offence falls within the prohibition contained in section 497, Cr.P.C. The discretion has been xilegally exercised.
4. Learned counsel appearing for the accused/respondent argued that the accused has successfully proved his plea of alibi before theInveStigation Agency which was taken into consideration by the learned Sessions Judge in his order. He further argued that the recovery of empties and spent bullets from the spot suggests that the prosecution version regarding only one fire having been fired is not correct. That no disinterested evidence is available to connect the accused with the commission of the offence.
5. The learned Assistant Advocate-General supported the petitioner's counsel in his arguments. According to him only one person is charged for effective firing who remained in abscondance for about two months during which period the accused managed to establish his plea of alibi; that there is no motive for false charge nor there is any evidence in support of mala fide on the part of the prosecution. In support of his arguments, reliance was placed on Murad Khan v. Fazal Subhan and another reported in PLD 1983 SC 82.
6. After hearing the learned counsel for both the parties and going through the file of the case, undoubtedly the report of the occurrence was lodged immediately in which the accused/respondent is charged for effective firing.
The complainant is supported by a witness accompanying him at the relevant time and also by the medical evidence. Recoveries from the spot further supports the prosecution version of the occurrence. The accused remained in abscondance for about two months and the plea of alibi raised after such a long period is yet to be established before the trial Court. The learned Sessions Judge has failed to apply his mind to facts of this case and has in a very unsatisfactory manner observed (the factum of mala fide cannot be brushed aside keeping in view the medical report and the opinion of the Investigating Officer). It was incumbent upon the learned Sessions Judge while granting pre-arrest bail to the accused to have discussed in detail the grounds which prevailed with him in forming his opinion, tentatively in view o the authority relied upon by the learned Assistant Advocate-General.
7. For the reasons stated above, the order of the learned Sessions Judge is set aside and the to the accused/respondent is recalled. He is present in Court and is taken into custody and sent to jail to face his trial.
This order shall, however, not debar the accused/, respondent for making fresh application before the competent Court some material entitling him to the grant of bail is made available on the file.
Bail cancelled