' Abdul Qayyum lodged a report in Police Station Shinkiari at 16-15 hours on 4-1-1990 that earlier at mid-day, he alongwith his son Shahzada Kamran and wife Mst. Parveen were sitting inside their house while his other son Liaqat Qayum (deceased) was sitting on the roof of their `baithak'.
Meanwhile they were attracted by hue and cry of Liaqat Qayum deceased. On coming out of their house they witnessed accused-petitioner Jhanda, catching hold of the deceased, and his son Khalid inflicting knife blows to Liaqat Qayum. On their raising alarm, both the accused decamped from the spot. They picked up the deceased in injured condition and placed him on a 'cot' but after a little while he succumbed to his injuries. According to the report; Sadique and Ghazi witnesses saw both the accused running away from the spot.
2. The motive attributed was a litigation between the complainant and his real brother Masood-ur- Rehman, the third accused, over property and it is alleged that at the instigation of said Masood, the petitioner, whose son is married to Masood's daughter, and accused Khalid has committed this offence.
3. Consequently a case was registered against all the above-named three persons under section 302/109/34, P.P.C. Vide FIR No, 4 dated 4-1-1990 in Police Station Shinkiari.
4. Accused Khalid has absconded. The accused-petitioner Jhanda and Masood were arrested.
They applied for their bail before the M.I.C. Mansehra which was turned down vide his order dated 21-1-1990. Both of them made an effort in this behalf before the learned Sessions Judge, Abbottabad Camp .Mansehra and while the request of accused-petitioner Jhanda was not acceded to, the application of accused Masood for bail was, however, allowed and he was granted bail in the sum of Rs, 50,000 with two sureties each in the like amount vide his order dated 18-2- 1990.
5. Accused Jhanda has filed instant petition for his bail and Abdul Qayyum has moved an application for re-calling the order qua accused Masood. As both the petitions arise out of the same case, I would decide these by this single order.
6. I have heard Aurangzeb Khan Tanan, Advocate learned counsel for the petitioner Jhanda, Muhammad Aslam Khan, Assistant Advocate-General for the State and Ghulam Mustafa Khan Swati, Advocate learned counsel for the complainant at length and also perused the record of the case with considerable degree of care.
7. It is contended on behalf of accused-petitioner Jhanda that he has been falsely implicated in the case; that the ocular evidence contradicts the medical evidence over the number of injuries and that the witnesses being closely related to the deceased are interested ones. It is further contended that not only the prosecution- witnesses, in support of the charge, are interested ones but the motive attributed to the petitioner also is too remote to prompt him to commit the offence he is charged with. It is also urged that Jhanda is an aged man of 70 years and having not been given any active role in inflicting the injuries on the deceased, deserves concession of bail till the decision of his case.
8. As against this the learned Assistant Advocate-General, while opposing the bail petition of accused Jhanda, maintained that the FIR having been lodged within 2 hours of the occurrence in the police station, distant 35/36 Kilometres away, leaves no room for doubt that the charge against the accused-petitioner is true. He contended that the so-called contradiction between the ocular and medical evidence is yet to stand the test of judicial scrutiny and so is the alleged close relationship of the PWs with the deceased which, otherwise, by itself is not sufficient to cast any clouds of discredence on their testimony. He, therefore, submitted that the age factor, without showing the person sick or infirm, is not by itself a valid ground to release him on bail. The learned counsel for the complainant adopted the arguments of learned Assistant Advocate-General.
9. In the connected petition of Abdul Qayyum for cancellation of bail of Masood accused- respondent, he, however, submitted that there is evidence available on the record to indicate that the murderous assault on the deceased was at the instance of Masood, and the bail granted to him was unwarranted in the circumstances of the case. The learned Assistant Advocate-General, however, did not support the application while Aurangzeb Khan learned counsel for the respondent vehemently opposed it for the same reason as advanced by the learned Sessions Judge in this behalf.
10. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
11. A reference to the record reveals that ex facie accused Jhanda is specifically charged to have clasped the deceased to enable and facilitate accused Khalid to inflict knife injuries on the person of the deceased and at the bail stage, to rule out his participation in the crime, is rather neither possible nor proper. Similarly I tend to agree with the learned counsel for the State that old age, per se, unless accompanied with the plea of sickness or infirmity, is not by itself sufficient to attract the provisions of the first proviso to subsection (1) of section 497, Cr.P.C. And as such does not furnish a valid ground for enlarging the accused person on bail. Reference may be made in this regard to the case of Hakim Ali v. State reported in 1979 SCMR 114.
12. As regards the interested nature of the witnesses or sufficiency otherwise of the motive, these are such matters as can be pressed into service at the trial only and cannot be shifted at the bail stage. For, an appraisal thereof now may result in prejudicing the cause of either of the parties.
13. After going through the record, I am of the considered opinion that from the material available so far, there appear reasonable grounds to believe that the accused-petitioner is guilty of the offence he is charged with and accordingly he cannot be given the concession of bail at this stage.
After recording some evidence at the trial, however, he shall be at liberty, if so advised, to apply for his bail to the learned trial Court.
14. Taking up now the application of Abdul Qayyum complainant for the cancellation of the bail granted to Masood accused-respondent, I find that the evidence forthcoming qua his complicity in the offence is very meger qualitatively as also quantitatively and the impugned order of the learned Sessions Judge, whereby he was allowed bail, is not exceptional and is rather well- founded.
15. Resultantly both the petitions fail and are dismissed hereby.