' Mst. Taiba Bibi through this application filed under section 497(5), Cr.P.C. Seeks the cancellation of to the accused/respondents Nos.1 and 2 in the case F.I.R. No,17, dated 1-2-1996 registered at Police Station Mulazai under section 302/34, P.P.C. By the learned Sessions Judge, Tank (Camp at D.I.
Khan) on 21-4-1996.
2. According to the F.I.R. On the eventful day the complainant alongwith her husband was present in her house when from outside someone called to come out, upon which no sooner her husband opened the door, she heard a report of fire shot with which her husband was hit. When she rushed to him she saw accused/respondents armed with klashnikovs coming towards her husband for more firing at him. On reaching him, her husband breathed his last The motive was stated to be a land dispute.
3. The learned 'counsel for the petitioner vehemently argued that the accused-respondents Were directly charged for the offence committed in a broad daylight and they remained fugitive from law for sufficient unexplained period. The acciaed/respondent Amin Shah is the real brother of deceased Amanullah and question of false charge does not arise at all. From the spot 13 empties of 7.62 bore were recovered, out of which one spent bullet from the wall in firing range and another spent bullet from the courtyard of deceased's house were found. According to post-mortem report, the deceased had sustained two injuries with corresponding exit wounds and the medical evidence is thus in conformity with the contents of the F.I.R. It was argued that the inordinate delay in lodging the report was, therefore, immaterial in the given circumstances. He went on to argue that the grounds which prevailed with the learned Sessions Judge in allowing bail to the accused/respondents, are flimsy as complainant is widow of the deceased having no enmity with the accused-respondents nor it was ever alleged by the accused side and hence the question of consultation and deliberation would not arise because if it were so, then some eye-witnesses to the occurrence would have been cited and the report would have been lodged in some different manner. The supplementary statement of the widow/complainant was recorded on the same day of the occurrence wherein she stated that there is no male member in her house which is situated at a distance from the village where she had gone to inform the relatives of the deceased about the occurrence, and thereafter, the complainant went to police station in the company of relatives which obviously consumed sometime in arranging vehicle etc.
4. As per site plan the house of the deceased is situated at a distance of 1-1/2 furlongs from the village. The contention of the learned Sessions Judge that as per post-mortem report the stomach of the deceased was shown healthy which he termed as empty is irrelevant at this stage being premature. Besides, as the klashnikovs have been used in the commission of offence, therefore, the offence falls within the ambit of Special Court and the learned Judge below was required to have dealt with the petition for bail in his capacity as Special Judge but the impugned order shows that he has signed the same as Sessions Judge, Tank (Camp at D.I. Khan) which is also illegal under the Suppression of Terrorist Activities Act, 1975. Reliance in this respect can be placed on cases reported in 1996 SCM R 1023, 1993 M LD 212, PLD 1993 Kar. 55 and 1996 PCr.LJ 955.
5. The learned counsel for the accused/respondents supported the impugned order of the learned Sessions Judge, Tank (Camp at D.I. Khan) while the learned counsel for the State opposed the same.
6. I have anxiously considered the arguments advanced at the Bar by either side and thoroughly scanned the record with their valuable assistance.
7. I do agree with the submissions made by the learned counsel for the petitioner that the grounds which prevailed with the learned Sessions Judge/ Special Judge, Tank (Camp at D.I. Khan) in allowing bail to the accused/ respondents are based on erroneous considerations. The accused/respondents are directly charged in a broad daylight occurrence and accused/respondent Amin Shah is the real brother of deceased Amanullah. The medical evidence is in line with the version given by the complainant who is a solitary witness of the incident. There is no enmity between the parties and after commission of the crime, the accused/respondents had gone into hiding for an unexplained sufficient period. The delay per se in lodging the report, if any, is immaterial in the given circumstances and there exists sufficient grounds for believing that the accused/respondents are guilty for the commission of the crime. The discretion exercised in their favour by allowing bail to them is arbitrary, fanciful and liable to be interfered with.
8. 'Accordingly this application is accepted and the to the accused/respondents by the learned Sessions Judge, Tank (Camp at D.I. Khan) per his order, dated 21-4-1996 is recalled. They are present in Court, taken into custody and sent to judicial lock-up to await their trial as undertrial prisoners.
Bail cancelled.