This is a petition under section 497(5), Cr.P.C. By Manzoor Hussain, petitioner, for the cancellation of bail granted to Jafar Khan and Amir Khan, respondents Nos. 1 and 2, by the learned Sessions Judge of Khushab, on 16-3-1986 in the State challan case.
2. The prosecution case in brief is that on 5-11-1985 at about Maghrab prayer time, Manzoor Hussain complainant petitioner, alongwith Imtiaz Hussain, deceased, and Nazar Muhammad P.W., was sitting in his Baithak in the Abadi of village Thathi Kalrani. Imtiaz Hussain, deceased, got up for going to his house. When he had gone a few paces in the street, both the respondents, while armed with guns, confronted him. Ghulam Jafar Khan, respondent, exhorted his companion not to spare Imtiaz Hussain. Hearing this Lalkara, Manzoor Hussain petitioner and Nazar Muhammad P.W. Came out of the Baithak. In their view, Muhammad Amir Khan, respondent, fired a shot at Imtiaz Hussain, which missed. Ghulam Jafar Khan, respondent, then fired a shot, which hit the deceased in his left flank and he fell down. Both the respondents ran away to their house. Ulfat Hussain P.W. Saw them near the mosque running away. Imtiaz Hussain was taken to the hospital in an injured condition, where he succumbed to his injuries.
3. The police in investigation found Ghulam Jafar Khan and Amir Khan, respondents, innocent, but Mukhtar Haider and Muhammad Ramzan, the son and son-in-law of Muhammad Amir Khan, respondent, as guilty Accordingly, they submitted the challan, placing the names of Mukhtar, Haider and Muhammad Ramzan in column No. 3 and that of Ghulam Jafar Khan and Muhammad Amir Khan, respondents, in column No. 2.
4. Two bail petitions filed by the respondents on 4-12-1985 and 11-1-1986 for bail were rejected by the learned Sessions Judge on merit. However, the third application filed on 16-3-1986 was allowed on the basis of the following observation made by the learned Judge in his impugned order of the said date:-- "I would not have considered this application of the petitioners in view of these orders, but for the new circumstance that a complaint has been instituted by the complainant against them in respect of the occurrence, which is an admitted position between the parties. According to the procedure laid down in PLD 1966 SC 708 for the trial of these two cases, the complaint case shall be tried and decided first and the challan case would lie dormant till its decision or upto the decision of appeal or revision against decision in the complaint case. Thus, it is clear that there would be no trial in the case for a long time. The law does not favour such a detention of an accused. It rather enjoins that in such a situation, the accused concerned be admitted to bail. Thus, the petitioners in my view are entitled to the grant of bail".
Being aggrieved by the said order the petitioner has filed the present petition for the cancellation of the bail granted to the respondents.
5. On behalf of the petitioner it is submitted that inquiry on the private complaint case filed by the petitioner is over and that the two respondents have been summoned to face trial, though the actual date of the trial has not been fixed. It is further submitted that now no element of delay remains in the case and that as previously the two bail petitions of the respondents were dismissed on merits, the respondents are not entitled to remain on bail.
6. On behalf of the respondent it is submitted that the two respondents were found innocent and, therefore, they are entitled to remain on bail. In this connection, Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Abbas Ali v. Khamiso and others 1985 SCMR 195 have been cited. It is further submitted that the discretion having been properly exercised and the present respondents presently being in the custody of the Court no good grounds exist for the cancellation of their bail.
7. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner, the accused /respondents and the State. It is obvious that the earlier two bail petitions filed by the respondents were dismissed on merits by the learned Sessions Judge.
Apparently, the third bail petition only succeeded on the ground that the inquiry into the petitioner's private complaint would occasion delay, which would further delay the trial of the private complaint or the challan case. It is admitted that inquiry is over and that the respondents A have been summoned in the private complaint case to face their trial. Ghulam Jafar Khan, respondent, is attributed to have fired the fatal shot, mortally wounding Imtiaz Hussain, deceased. He is, therefore not entitled to be released on bail. As regards Muhammad Amir Khan respondent, it is alleged that his shot aimed at the deceased, missed. In the special circumstances of the case, I would not disturb the learned Sessions Judge's order qua him.
8. For the foregoing reasons, this petition is partly accepted and the bail of Ghulam Jafar Khan, respondent No. 1, is cancelled. He shall be taken into custody. The petition fails qua Muhammad Amir Khan, respondent No. 2.
9. Copy dasti on payment of usual charges.