This is a petition under section 497(5), Cr.P.C. Filed by Abbas Khan, petitioner/complainant, for the cancellation of bail granted to Nawaz Khan and Naecm Khan, accused-respondents Nos.1 and 2 herein, by the learned Sessions Judge, Bannu on 29-3-1989.
2. The prosecution case, in brief, is that the accused-respondents suspected Umar Khan, brother of the petitioner/complainant, to have developed illicit liaison with the daughter of Sher Khan, another brother of the accused-respondents Nos.1 and 2. It is alleged that on 3-9-1987 at 06-00 hours, Abbas Khan complainant and his brothers Umar Khan and Nazar Gul were on their way to their lands and when they reached the land known as 'Dabak Som' situated near the house of Akram Khan, they were confronted by the accused respondents duly armed with .12 bore shotguns. When they reached at some distance, accused Nawaz Khan fired a shot at Umar Khan with which he was hit and fell on the ground. Thereafter, accused Naeem Khan fired another shot at Umar Khan, which hit him on his head. Both the accused-respondents are, thereafter, alleged to have decamped.
3. The learned Sessions Judge released the accused-respondent No.1, namely, Nawaz Khan, on bail, because during investigation he was found innocent by the police and placed in Column No.2 of the challan. The case of both the accused-respondents, according to the learned Sessions Judge, was arguable for the purposes of bail, for the reason that an independent witness examined by the police on the day of occurrence dated 3-9-1989, namely, Mst. Shahzad Mira, has categorically stated that she was present at the time of occurrence and she could not see the culprits, as there was sufficient darkness and hence the case of both the accused was of further inquiry.
4. Both the accused-respondents, after commission of the offence, are alleged to have absconded and were arrested on 8-3-1989 and thus they have remained fugitives from law for one year, six months and 5 days.
5. S. Zafar Abbas Zaidi, the learned counsel for the petitioner, contended that the accused- respondents 1 and 2 have not only been named in the promptly lodged F.I.R., but have also been assigned effective role of having fired with topaks causing the death of the brother of the first informant. He also urged that the statement of Mst. Shahzad Mira was recorded under section 161, Cr.P.C. On 18-9-1987 and not on 3-9-1987, as incorrectly observed by the learned Sessions Judge.
He further maintained that the statements of the defence witnesses, namely, Ghulam Muhammad, Shahid Rehman, Abdur Rehman, Badshah Mir, Ayaz Khan and Muhammad Islam were recorded after 26 days of the occurrence in support of the plea of alibi raised by Nawaz Khan accused.
According to the learned counsel for the petitioner, these statements having been recorded long after the occurrence particularly that of Mst. Shahzad Mira who, notwithstanding having witnessed the deceased being done to death by the accused had allegedly slipped away to Bannu, no implicit reliance could be placed on them.
5-A. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General, while supporting the plea of cancellation of bail, additionally submitted that the opinion of the Investigation Officer qua the innocence of the accused respondents and also placing one of them in Column No.2 of the challan was not binding on the Court, particularly, when such an opinion is not based on the soundness of the; material which had been relied upon by the Investigating Agency. In this context, he placed reliance on Muhammad Afzal v. Nazir Ahmad 1984 SCMR 429.
6. On the other hand, Mr. Abdul Aziz Khan Kundi, the learned counsel for the accused-respondents, cited Nazir Ahmad v. State 1988 P Cr. L J 1181 to argue that the accused-respondents have been found innocent in two successive investigations conducted by the S.H.O. And S.D.P.O. And one of the accused respondents had been rightly placed in Column No.2 of the challan and, therefore, the order of the learned Sessions Judge granting bail to the accused respondents is unexceptionable.
According to him, the category of evidence of abscondence against Naeem Khan accused was not available to the prosecution, because in case diary No.3, dated 29-9-1987, Nawaz Khan accused is shown to have appeared before the S.H.O., who interrogated him and then relieved him.
7. There is no cavil with the proposition that the relevancy to the question of bail of the opinion of the Investigating Agency in regard to the complicity of an accused person will primarily depend on the soundness of the material upon which it is based. The crucial question in the case in hand before the learned Sessions Judge was whether the investigation had brought to light the facts which formulated, prima facie, a reasonable ground for believing that the accused-respondents, though named in the F.I.R., were not guilty of the offence charged with and that the opinion of the Investigation Officer was based on such facts.
8. It is a pity that the learned Sessions Judge has passed the impugned order of bail in a very hasty and slipshod manner. He was in so much hurry that he turned down the application of the complainant/petitioner for adjournment on the ground because on the day the impugned order was passed, it was the last day of his tour at Lakki and `if the case was adjourned, the application of the respondents will linger on for further 10/12 days'. The learned Sessions Judge appears to have not applied his mind to the facts of the case which is gleaned from the wrong date of examination of Mst. Shahzad Mira which he has mentioned in his impugned order. Mst. Shahzad Mira was examined on 18-9-1987 whereas according to the learned Sessions Judge, she was examined on the day of occurrence i.e. 3-9-1987, which is patently wrong.
9. In the present case, the police recorded the statement of Mst. Shahzad Mira after 15 days of the occurrence and those of other P.Ws., namely, Ghulam Muhammad etc. After 26 days of the occurrence in support of the innocence of the accused-respondents and the plea of alibi raised by accused Naeem Khan. This kind of statements recorded by the police in the present case can always be procured from the supporters/relatives of the accused persons in almost every case. I have already observed in the case of Shadi Khan v. Matiullah Khan 1989 P Cr. L J 2253 that `it was not a single case from the jurisdiction of Bannu District that such a plea is advanced. In a number of cases, I have noticed that such a plea is advanced and relying on 1985 P Cr. L J 2624, accused are being declared innocent and placed in Column No.2 of the challans. It is one of those cases in which the investigation agency appears to have adopted the same tactic. In my view, the opinion of the investigating agency, qua the innocence of the accused-respondents, is not based on sound material and, therefore, even if Naeem Khan, accused-respondent No.2 herein, was placed in Column No.2 of the challan, still he would not be entitled to bail. Similarly, the plea of alibi raised by Nawaz Khan accused lending support from the statements of the witnesses, namely Ghulam Muhammad etc. Is not so much weighty to be prima facie, worthy of credence. In so far as Naeem Khan, accused-respondent, is concerned, there appears to be no material for saddling him with the consequences of his abscondence, because it is negatived by the Investigation Officer.
Nonetheless, accused Nawaz Khan has remained in abscondence for one year, 6 months and 5 days, which would deprive him of the concession of bail. On consideration of the entire material available on tile and abscondence of the accused-respondent Nawaz Khan for an unexplained and noticeable period, I have formed the opinion that there exist reasonable grounds for believing that both the accused-respondents have committed the offence with which they have been charged.
10. In this view of the matter, I would accept this petition, set aside the order passed by the learned Sessions Judge and cancel the bail granted to the accused-respondents Nos.1 and 2. They have been taken into custody and sent to prison.