MUHAMMAD BASHIR KHAN JEHANGIRI, J.---By this single order we intend to dispose of the Criminal Petitions Nos.8-P, 9-P and 42 of 1997 as all the three petitions had arisen out of the same F.I.R. No.515 dated 18-11-1996 registered at Police Station, Daudzai, District Peshawar.
2. The brief facts as narrated in the impugned order of the High Court are that on 18-11-1996 at 1930 hours one Jamal Shah son of Abdur Rehman, resident of Ziam Qilla, while proceeding in a motor- car along with one Zulfiqar Ali and to ladies, namely, Mst. Nasreen and Mst. Janwari was fired to death on a path leading to Bacha Garhi, Rehmat Abad, beyond Bakhshu P.I on Charsadda Road, Peshawar. The report of the occurrence was lodged by Mst. Nasreen wife of Siraj of Wahid Garhi at 2000 hours before Muhammad Arif Khan, S.I. On the spot alleging that on the day preceding the night occurrence, she, alongwith her relative Mst. Janwari had gone to Peshawar City for making purchases. After making the requisite purchases, they reached Peshawar Bus Stand at Charsadda Road and waited for the Bus. In the meantime a car of red colour with to persons occupying the seats therein stopped near them and offered them a lift which was accepted by the to ladies. They started the vehicle and on reaching near Bakhshu P.I, the driver turned it to a 'katcha' path saying that he intended to deliver some important message to someone. After covering some distance, the ladies apprehended their abduction and raised hue and cry whereupon a youngman present at the path opened fire at the car with his pistol. The driver of the car was hit with the fire shot and died instantaneously but the car turned turtle. The residents of the adjoining village pulled out the inmates from the car. According to the first informant, the man seated in the car and that who had opened the fire ran away from the spot. After about 8/9 days on 26-11-1996 Abdur Rehman, father of the deceased Jamal Shah, made a statement under section 161 Cr.P.C. Charging Mazullah petitioner for the murder of his son in furtherance of the common intention with Mst. Nasreen and Mst. Janwari. The motive given out by him in his statement was that his son had on that day gone to arrange money for the purchase of Tractor and was bearing sum of rupees seven lacs on his person. In consequence of this statement and that of one Dost Muhammad P.W., the to ladies and Mazullah were arrested. A learned Additional Sessions Judge when approached to enlarge the to female accused on bail granted bail to the to females accused but declined to extend this concession to Mazullah petitioner in Criminal Petition No.8-P of 1997.
3. Feeling aggrieved Mazullah petitioner moved an application for bail to the High Court. On the contrary, Abdur Rehman, father of the deceased, moved a Criminal Misc. Application No. 13 of 1997 for cancellation of bail granted by the learned Additional Sessions Judge to Mst. Nasreen and Janwari. A learned Judge in Chambers of the Peshawar High Court by a `single order rejected the bail application of Mazullah and ordered the cancellation of bail granted to Mst. Nasreen but maintained the order granting bail to Mst. Janwari. The plea of Abdur Rehman respondent before us for the cancellation of bail of Mst. Janwari was, however, declined by the learned Judge in the High Court.
4. Feeling aggrieved Mst. Nasreen and Mazullah petitioners have pleaded for grant of bail pending their trial.
5. After hearing the learned counsel for the parties and Mr. M. Azam Khan, learned Additional Advocate-General, N.-W.-F.P., we have decided to convert the to petitions (Cr.P.8-P and CrI.P. 9-P of 1997) filed by Mazullah and Mst. Nasreen respectively, into appeals and to dispose of all the three cases filed before us.
6. Mr. K.G. Saber, learned Advocate-on-Record, contends that learned Single Judge in the High Court while refusing bail to the appellants has erred to take into consideration extraneous circumstances holding the appellants to have been responsible for the murder of the deceased as the second occupant of the car was Mazullah appellant. According to him, the statement of Abdur Rehman, father of the deceased, involving Mazullah appellant in the offence was recorded after 9/10 days of the occurrence and, therefore, it has prima facie got no evidentiary value inasmuch as had the statement of Abdur Rehman a semblance of truth in it, he would have made this statement on the same night or on the following morning of the night of occurrence. According to his own showing he had satisfied himself and was convinced that the appellant was responsible alongwith to female accused for the murder of his son. The statement of host Muhammad P.W.
Which was also recorded on the day when Abdur Rehman P.W. Was examined was criticised in the same terms.
7. Mr. Fateh Muhammad Khan, Advocate Supreme Court, learned counsel for Mst. Nasreen appellant submitted that she was victim of circumstances and being a female was even otherwise entitled to the concession of bail under the First Proviso to section 497 Cr.P.C. The learned Additional Advocate-General has supported the impugned order of the learned Single Judge in the High Court.
8. On hearing the learned counsel for the appellants, the learned Additional Attorney-General N.- W.F.P., and the learned counsel for Abdur Rehman respondent we are of the view that the discretion exercised by the learned Additional Sessions Judge in allowing bail to Mst. Nasreen appellant and Janwari respondent cannot be said to be injudicious or improper, for the consideration which weighed in favour of allowing bail to them were germane to the issue as to whether there were reasonable grounds for believing that she was guilty of an offence , with death or imprisonment for life or imprisonment for ten years. On this view of the matter, the order did not require interference but the learned Single Judge while cancelling the bail has appraised the evidence collected by the investigating agency in a way as to give a finding on the culpability of the appellants which was inappropriate at that stage, and no consideration was given to the factors which had weighed with the learned Additional Sessions Judge in granting bail to Mst. Nasreen appellant. Similarly the learned Additional Sessions Judge had also failed to consider the same material in so far as the plea of bail raised on behalf of Mazullah appellant was concerned The contention raised on behalf of Mazullah appellant that he could not be connected with the murder of the deceased on the statement of his father made after 9/10 days of the occurrence called for further inquiry under section 497(2) Cr.P.C., to which the learned Single Judge in the High Court had not at all adverted.
The learned Single Judge in the High Court, on the contrary, has taken into consideration extraneous circumstances to decline bail to Mazullah appellant and to cancelled the bail granted to Mst. Nasreen appellant.
9. We would accordingly allow Criminal Petition No.8-P and Criminal Petition No.9-P of 1997, set aside the order of the High Court dated 14-3-1997 and admit the to appellants, namely, Mazullah and Mst. Nasreen to bail pending trial in the sum of Rs.1.00,000 (one lac) with to sureties each in the like amount to the satisfaction of Assistant Commissioner, Peshawar.
10. The Criminal Petition No.42 of 1997 seeking cancellation of bail of Mst. Janwari having no substance is dismissed.