Gul Qadam Jan son of Sakhi Jan complainant has prayed for setting aside of the order of the learned Sessions Judge, dated 17-10-1984, whereby his application for cancellation of the order of the learned Magistrate, dated 30-7-1984 granting bail to the accused respondent, was rejected.
2. In the F.I.R. No. 135, dated 20-7-1984 of Police Station Domail lodged by Gul Qadam Jan at 16-55 hours it was stated that at the time of occurrence while he and his brother namely Imam Jan were busy working in their land he noticed Sher Azam Khan son of Zafar Khan entering his house and coming out of it after a while duly armed with a .12 bore shot-gun. His brother Anar Khan also came out of the house having a rifle in his hand. The other two accused namely Mir Zalam Khan son of Khan Mir and Sardarai son of Mir Zalam Khan followed both of them. However, the latter two accused were empty handed. All the 4 accused proceeded towards the land from behind. Sher Azam and Anar Khan both simultaneously fired at Imam Jan with which he was hit and fell down on the ground. Thereafter all the 4 accused- came to the spot, over-powered him and gave him beating.
When they were sure that the injured had expired all the 4 accused decamped from the spot. In the F.I.R. Mst. Zarifa, his mother, was mentioned having witnessed the occurrence. The motive for the offence was stated to the dispute over the land between the parties.
3. At the same time F.I.R. 134 was registered at the instance of Sher Azam accused in this case under section 307/34, P.P.C. Charging Imam Jan as an accused for it. It was alleged in the F.I.R. By Sher Azam that while he was preparing his land for sowing Jawar crop Imam Jan came to him protesting that he has a share in the land, started grappling with him and threw him on the ground.
In the meantime Gul Qadam Jan and Sardar Ali Khan brothers of Imam Jan armed with their respective fire-arms arrived at the spot. Each of them fired a shot at him which missed him but instead hit Imam Jan.
4. The learned Magistrate while considering the application for bail moved by the accused referred to the medical evidence and the cross-case in ordering their release on bail. The doctor while examining the deceased had found some injuries on his person caused with blunt weapon which had not been attributed to the accused in the F.I.R. The existence of the cross-case was further considered to be a circumstance making the case of the accused to be that of further enquiry. All the 4 accused were, therefore, released on bail vide his separate order. Application for cancellation of bail made before the Sessions Judge by the complainant was rejected vide the impugned order, dated 17-10-1984. In his further application in this Court complainant had prayed for the cancellation of bail to all the four accused but subsequently he withdrew his prayer respecting the two accused namely Mir Zalam Khan and Sardarai as they had not been attributed any active role in the commission of the offence.
5. Mr. Zafar Abbas Zaidi, Advocate for the petitioner, Peer Feroze Shah, Advocate for the accused- respondents and Assistant Advocate General for the State present and heard.
6. The learned counsel for the petitioner contended that the orders of both the Courts below releasing the accused-respondents on bail who are directly charged for the murder of Imam Jan has been passed in violation of subsection (1) of section 497, Cr.P.C. As the .Presence of the complainant is admitted in the F.I.R. Lodged by Sher Azam accused. That the mere fact that some injuries allegedly caused with blunt weapon have not been mentioned in the F.I.R. Would at the most be an omission on the part of the complainant but would not discredit his version at this stage respecting the fire-arm injuries resulting in the death of Imam Jan. He further argued that in this case when all the 4 accused had empowered him after the occurrence he might not have noticed some of the accused inflicting injuries on the deceased with blunt means. Similarly, the learned counsel argued that the story put forwarded by the accused in his F.I.R. In the cross-case is false and unnatural and should not have been given any weight at this stage on facts and circumstances referred to alcove. The learned counsel appearing for the accused repeated the arguments which had prevailed with the two Courts below in granting bail to the' accused. The learned Assistant Advocate-General expressed his view that generally bail granted to the accused in cross-cases is not interfered with on the application of the complainant.
7. After hearing the learned counsel for the parties the order of the learned Magistrate and that of the learned Sessions Judge are legally not maintainable. The charge against the accused made in the promptly lodged report is fully corroborated by the medical evidence. The omission of some injury caused with blunt means found by the doctor on the person of the deceased at the time of post-mortem examination, at this stage, was immaterial as argued by the learned counsel for the petitioner on the facts of this case. When all the 4 accused empowered the complainant and were giving beating to him they might have also belaboured the deceased, when he had fallen on the ground and it might have escaped his notice. Furthermore, even if it is admitted that there were some injuries caused with blunt weapon on that by itself would not discredit the entire prosecution case especially when the presence of Gul Qadam Jan complainant at the spot is admitted. The Courts below also on wrong p3emises gave undue weight to the registration of a cross-case in which no injury was caused to the opposite party. At this stage when both the accused are charged for the murder of Imam Jan for firing at him at a place within the fields of the complainant as shown in the site plan there are sufficient reasonable grounds connecting the two accused with the commission of the offence. Hence, further enquiry would not be made the basis for granting bail to the accused. This application is, therefore, allowed. The order of the learned Sessions Judge and that of the Illaqa Magistrate referred to above are set aside. The bail of the accused is cancelled. They are present in Court, taken into custody and sent to judicial lock-up for facing trial in the case.