Through this application Aqal Khan, petitioner, wants the cancellation of bail granted to the accused-respondents Sheazada son of Shahzada and his son Munir Khan granted to them by Magistrate Ist Class, Hangu vide order, dated 31-3-1986 in a case registered vide F.I.R. No. 43, dated 2-2-1986 of Police Station Thall under section 302/34, P.P.C.
2. The prosecution case in short compass is that on 2-2-1986 at 10-20 a.m. Aqal Khan, complainant, lodged a report at Civil Hospital, Thall to the effect that he along with Muhammad Din and Muhammad Ayub, deceased, were present at Flying Coach's Adda at Thall on that day where Muhammad Ayub, deceased, was employed for issuing tickets and at that time was sitting in the chair when in the meantime Sherzada son of Haji Shahzada and his two sons Munir Khan and Farid Khan came there armed with Klashioncovs and on reaching near Muhammad Ayub, deceased, all the three accused started firing at him with their respective weapons as a result of which Muhammad Ayub was hit and fell to the ground. Motive for the offence as advanced in this report is that there was a quarrel on 27- 1- 1986 between the brothers of the deceased on one side and the accused on the other at Flying Coach Stand Shangrilla Hotel, Peshawar. Apart from the complainant the incident was also witnessed by Muhammad Din. Muhammad Ayub was being taken to the civil hospital when he died en route.
3. It may be mentioned here that accused Farid Khan is still absconder and the rest of the two accused-respondents after 8 days of the occurrence submitted an application before the Sessions Judge, Kohat, for pre-arrest bail where from they were allowed ad interim bail on 10-2-1986 but the same was not confirmed vide order, dated 6-3-1986. The accused respondents after arrest moved the Court of Magistrate 1st Class, Hangu, and he vide order, dated 31-3-1986 allowed them bail. The complainant filed an application for the cancellation of bail but the same was rejected by the learned Additional Sessions Judge vide order, dated 4-5-1986, hence the present application for cancellation of bail.
4. I have heard the learned counsel for the petitioner and for the accused-respondents. The learned Advocate-General, however, represented the State and with their help I have gone through the material placed on record.
5. The first order of the learned Additional Sessions Judge, refusing pre-arrest bail to the accused- respondents, clearly shows that though a plea of alibi was taken before him but was decided against the accused respondents. However, the order, dated 31-3-1986 passed by the Magistrate 1st Class, Hangu, allowing bail to the accused-respondents reveals that he has again taken into consideration the second plea of alibi which, in my view, he was not competent to do so. It is an admitted fact that the bail application moved to the Court of Magistrate 1st Class was only 3 days after the rejection of the pre-arrest bail application by the learned Additional Sessions Judge and in this bail application a second plea of alibi was taken by the accused-respondents which is quite unbelievable. In my opinion, in presence of a direct charge of murder against the accused- respondents coupled with the fact that the occurrence took place in broad daylight in a congested area, it was not a fit case for the grant of bail by the learned Ilaqa Magistrate. The medical report shows that the deceased received fire-arm injuries from different directions and through the recovery memo. The I.O. Recovered 5 empties from the spot and also a bullet embodied in the chair on which the deceased was allegedly sitting at the time of occurrence when he was fired at by the accused- respondents.
6. The learned Additional Sessions Judge while rejecting the bail cancellation application of the complainant has gone very deep into the merits of the case which he should not have done while considering bail cancellation application, in view of the authority reported in Muhammad Afzal v.
Ghulam Haider and 2 others 1984 P Cr. L J 590 it has been observed that:---- "Section 302 34.--Merits of case not to be deeply gone into by Court granting bail-Reasonable ground existing tending to connect accused with the crime--Bail to be refused without going into deeper application of merits of such grounds and evidence on which they are rested which is function exclusively of trial Court:"
Similarly, in another authority reported in Sardar Abdul Hamid v. Momin Khan and 4 others PLD 1984 Pesh. 199 the following observations were made:-- "Section 302--Bail, cancellation of--Observation of Sessions Judge in bail order that "accused party having won election it was but natural for complainant party to have launched attack upon accused party" an illegal exercise of his powers--Order of Additional District Judge based on utter disregard of material available on record and beyond scope of jurisdiction of Court dealing with bail matter--Material available on record sufficient at bail stage to connect accused with commission of offence falling within prohibition contained in sub-cl. (1) of S. 497, Cr.P.C.--Bail cancelled.
7. In view of the discussion gone before coupled with the authorities cited above, I am of the firm view that prima facie a case exists against the accused-respondents at this stage. The pleas of alibi and other points viz.; recovery of blood-stained earth from the place of occurrence are points to be determined by the trial Court at the time of trial. As such, the are not entitled to the concession of bail in the circumstances. Accordingly, I would accept this application and cancel the bail granted to the accused-respondents by the learned trial Magistrate. They are present in Court, taken into custody and remanded to jail as undertrial prisoners.
8. Before parting with the case I would direct that this case should be heard by the learned Sessions Judge, Kohat, in the interest of justice.