MUHAMMAD BASHIR KHAN JEHANGIRI J.- Muhammad Raza son of Jan Muhammad resident of Katoo Khel, Tehsil Lakki Marwat, District Bannu, has filed this petition u/s 497(5) Cr.P.C, for cancellation of pre-arrest bail allowed to Abdul Majeed and Abdul Razaq, sons of Mir Baz Khan, residents of Daraka Fateh Khan, Tehsil Lakki Marwat, District Bannu, by Sessions Judge, Bannu, which was later on confirmed by his order dated 4.7.1988.
2. The prosecution case in brief is that on 19.2.1988. At 'khuftan- wella' Muhammad Raza complainant, his son Muhammad Ghulain and one Attaullah were sitting in their chowk when in the meantime Abdul Razaq alias Khaney and his brother Abdul Majeed emerged at the spot. Abdul Razaq fired a shot at the complainant with which he was hit on left thigh. The accused thereafter are alleged to have made good their escape. It is further alleged that after a short while the complainant party heard the sound of an explusion from the direction of their house. Mst.
Memoona, wife of the complainant rushed to the spot and informed the complainant party that Bomb had been thrown in their house with which she had been imjured on her cheek. Muhammad Ghulam son of the complainant and Attaullah PWs are alleged to have witnessed the occurrence.
Dispute over the landed property between the parties is stated to be the motive for this offence.
3. Pre-arrest bail was allowed by the learned Sessions Judge, Bannu, on the ground that the Investigating Officer has recorded the statements of 18 persons on oath who have supported the plea of alibi raised by the accused/respondents. Another ground which found favour with the learned Sessions Judge was the opinion of the Investigating Officer that the accused-respondents were innocent.
4. It is contended on behalf of the petitioner that the F.I.R, clearly shows that Abdul Razaq respondent fired a shot at Muhammad Raza complainant which hit his left thigh while his co- accused Abdul Majeed was also present at the spot, therefore, the accused-respondents were not entitled to the concession of bail.
5. On behalf of the accused-respondents, it is submitted that one P.W., namely, Muhammad Ghulam being the son of the complainant and Attaullah P.W. Being their party man and as the occurrence has taken place in pitch dark, the story of the complainant is not true. It is further submitted that both the accused-respondents were held to be innocent during the police investigation, which fact throws a cloud of doubt on the prosecution case. It is also contended that the only effective fire shot was fired from the back side of the complainant, therefore, the claim of the complainant and the witnesses to have seen the occurrence in the pitch dark is not sustainable. In the light of these circumstances, it is submitted, that the exercise of discretion by the learned Sessions Judge was judicious and proper and this Court should not interfere in this case.
6. The learned counsel for the State supports the learned counsel for the respondents.
7. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner the respondents and the State and have also perused the police record. The F.I.R, clearly mentions the name of Abdul Razaq respondent who is the person who fired a shot at the complainant which hit him on his thigh. Whilst not un-mindful of the fact that both the accused- respondent have been declared innocent by the police during investigation but it is also a settled law that the Courts are not bound by the opinion of the Investigating Officer qua the innocence of the accused. There arc numerous authorities by the Honourable Supreme Court of Pakistan and of this Court in which a clear distinction has been made between pre-arrest and after-arrest bail. This is a matter of regret and I am constrained to observe that the learned Sessions Judge while dealing with the application for pre-arrest bail did not keep in mind the principles enunciated by the Superior Courts in deciding applications for pre-arrest bail and seems to have been un- necessarily impressed by the statements recorded by the Investigating Officer about the innocence of the accused-respondents without realizing that there was a direct charge against Abdul Razaq accused- respondent for cflactivc firing upon the complainant. The learned Sessions Judge has passed the impugned order, at least in so far as Abdul Razaq accused-respondent is concerned, in clear violation of law and principles laid down by the Supreme Court of Pakistan as well as by this Court dealing with pre-arrest and after-arrest bails. This shows lack of application of judicial mind and carelessness on the part of the learned Sessions Judge.
8. The impugned order in so far as Abdul Razaq accused is concerned, is set aside and the petition is allowed to this extent. The bail granted to Abdul Razaq is cancelled. He is present in Court, taken into custody and sent to jail. In so far as accused-respondent Abdul Majeed is concerned, no overt-act is attributed to him, therefore, I would not concede to the plea of cancellation of pre- arrest bail granted to him by the learned Sessions Judge. The accused-respondent Abdul Razaq would, however, be at liberty to move the competent Court for regular bail if so advised. The Court, to which an application is made, shall decide the question of bail without being influenced-by the observations made by this Court in this case on the line of distinction that had to be drawn between pre-arrest bail and after- arresl bail. The record should be sent forthwith to the competent agency for proceeding further in the case.