Faridullah, S.H.O., Police Station Ghoriwala, District Bannu, was conducting investigations on 3-2- 1996, inside the Police Station, in respect of murder case, registered under sections 302/324/34, P.P.C. Vide F.I.R. No.52 dated 3-2-1996 when at about 17-00 hours he was informed that the dead body of Faizullah son of Haq Nawaz was lying in the fields of Muhammad A.I Jan and that another person namely Ghazi Marjan son of Bakhtawar, was also lying there unconscious/injured.
2. Resultantly the S.H.O. Rushed to the scene of occurrence. He found the dead body and the injured lying there on the spot. The S.H.O. Tried to trace out the heirs/relations of the deceased (Faizullah) as well as the injured (Ghazi Marjan) but failed to get the requisite information. No body was ready to come in the lime light to lodge the report regarding the alleged occurrence. The S.H.O., after preparing the inquest report of the deceased despatched his corpse to the Civil Hospital, Bannu for Post-Mortem Examination. The injured was also sent to the hospital for treatment under the escort of F.C. Fida Muhammad (No.790) and F.C. Saadullah (No.2260).
3. Since no body came forward to lodge the report therefore the S.H.O., who was of the opinion that the occurrence had taken place because of the cross-- case (registered under section 302/324/34, P.P.C. Vide F.I.R. No.52) scribed the Murasila and sent the same to Police Station through D.F.C. Noor Aslam (No.510). In consequence thereof F.I.R. No.53 was registered under section 302/324/34, P.P.C. It may be mentioned here that the petitioners were not charged, by name, in the Murasila/F.I.R. For killing Faizullah and injuring Ghazi Marian. In fact no body was even named in the F.I.R. For the commission of the crime.
4. On the next day i.e., 4-2-1996 statement of Mushke Alam, a close relative of the deceased and the injured, was recorded) under section 161, Cr.P.C. It was he who for the first time charged the petitioners and their co---accused Muhammad A.I Jan (since released on bail) for committing the murder of Faizullah and injuring Ghazi Marjan. The present case was thus set up as a cross-case to the case registered vide F.I.R. No.52. Later, on the same day, the statement of Ghazi Marjan injured was also recorded by the S.H.0 who supported the version of P.W. Mushke Alam, in substance.
Needless to mention that the statement of P.W. Mushke Alam was also recorded under section 164, Cr.P.C. Hence the petitioners and co-accused Muhammad A.I Jan stood charged with the commission of offences punishable under section 302/324/34, P.P.C.
5. Accused Mir Salam Jan alias Titak (petitioner No.1) and Muhammad A.I Jan (now on bail) obtained pre-arrest interim bail from the Court of the Sessions Judge, Bannu. However, before its confirmation or otherwise, the application for pre-arrest bail was withdrawn by the petitioners, on 28-3-1996, on the grounds that they had been adjudged innocent by the Investigating Officer.
6. On 2-6-1996, the petitioners alongwith Muhammad A.I Jan (now on bail) were arrested. The petitioners and their co-accused Muhammad A.I Jan applied for bail to the Special Court, Bannu which by its order dated 11-7-1996, while granting bail to co-accused Muhammad A.I Jan, refused to release the petitioners on bail. Hence this petition.
7. Mr. Muhammad Sardar Khan, Advocate, learned counsel for the petitioners assisted by Mr. Dost Muhammad Khan Advocate and Mr. Asadullah Khan Chamkani, Advocate, Mr. Abdur Rauf Khan, Gandapur Advocate, learned counsel for the State assisted by Mr. Tariq Pervaiz, Advocate, learned counsel for the complainant present and heard. Record of the case perused with some degree of care.
8. The learned counsel for the petitioners submitted at the outset that the petitioners are innocent and have been falsely implicated in the case inasmuch as nobody had seen them committing the alleged crime. According to him, in point of fact, the occurrence was not witnessed by anybody and it was for this reason that nobody came forward to lodge F.I.R. He contended that the case in hand is a case of "no evidence" and thus the petitioners are entitled to get bail. He further contended that the S.H.O. Was admittedly informed by some "unknown person" about the presence of the dead body of Faizullah as well as Ghazi Marjan injured/unconscious lying at the spot but the identity of that "person" has not been disclosed uptill now. According to him it was after the S.H.O.
Had failed to persuade anybody to come forward and lodge the report about the occurrence, he took upon himself to draft the Murasila and send the same to the police station where, on its basis, F.I.R. No.53 was duly registered. He further submitted that a perusal of the Murasila as well as the F.I.R. Would show that since the petitioners were not charged therein for committing the offence and therefore, the Investigating Officer, realising that it would be extremely difficult to point out the real culprits, in consultation/collusion with the complainant ply, procured the services of P.W.
Mushke Alam, a close relative of the deceased/injured, and prompted him to charge the petitioners for committing the crime. He further argued that the Investigating Officer on the next day recorded the statement of Ghazi Marjan (injured) under section 161, Cr.P.C. Which, in substance, corroborated the testimony of P.W. Muskhe Alam and that this was done purposely/dishonestly to lend support to the prosecution version. The learned counsel for the petitioners vehemently argued that the entire procedure adopted by the Investigating Officer/complainant, would clearly show that the case against the petitioners has been cooked up. He further submitted that there was nothing on the file to suggest, even remotely, that the petitioners have committed the offences with which they have been charged and that their case is that of further enquiry. According to petitioners' counsel this important fact was kept out of consideration by the Subordinate Judge while deciding the bail petition and in doing so has failed to apply his judicial mind and thus patently failed to note that the case of the petitioner was that of further enquiry. Besides, the learned counsel for the petitioners alleged that petitioner No.1 has been found to be innocent as his plea of "alibi" has been accepted by the Investigating Officer and resultantly, he was entitled to the concession of bail as of right. He stated that the Special Court has also failed to take this fact into consideration and, without any rhyme or reason, refused to grant him bail and thus acted arbitrarily and committed material illegality. The learned counsel further stated that the investigation of the case has revealed that the complainant party (accused in case F.I.R. No.52) is the real aggressor as they had waylaid Noor Wali Jan (killed) and the eye-witnesses, in the cross- case and that, on this score too, the petitioners were entitled to be released on bail. He stated that the fact that all the accused, in the cross-case (F.I.R. No.52), have absconded, have become fugitives from law and have been accordingly declared as "proclaimed offenders" by a competent Court was also not taken into consideration by the lower forum while deciding the bail petition. He next contended that the Special Court has fell in error by not taking notice of the consistent view of the superior Courts that in such circumstances the cases of both the parties are to be placed in juxtaposition and tentative assessm ent of the record is to be made even at the bail stage. He submitted that if it is difficult/impossible to determine as to who was the aggressor or the aggressed upon and that who had acted in self-defence, then in that situation, the case has to be considered to be that of further enquiry. According to him the tentative assessment of evidence in the case in hand would show that reasonable grounds do not exist for believing that the petitioners are connected with the commission of the offences with which they have been charged and that their case clearly falls under II proviso to section 497, Cr.P.C. And accordingly they are entitled to be released on bail, not as a matter of grace but as a matter of right. He argued that since the Subordinate Judge had patently failed to take into consideration this important aspect of the case hence the impugned order is liable to be set aside as it has violated the well-settled principle of law. He also submitted that there was nothing on the file, except the bald version of the S.H.O. To suggest that the injured person namely Ghazi Marian, was unconscious and unable to lodge the report on the day of occurrence. According to him the fact that Ghazi Marjan, after receiving the injury (simple in nature), fell unconscious and remained as such till the time he was examined by Investigating Officer was neither confirmed by the doctor who examined him in the hospital nor any body else. The petitioners' counsel further submitted that the fact that the petitioners, who are law-abiding citizens, did not abscond after the occurrence must not be lost sight of and that on this score alone they may be extended with the concession of bail. Apart from this he also contended that one of the co-accused has already been released on bail and thus, keeping in view the principle of consistency in granting bail, the petitioners be also allowed bail.
9. The counsel for the State, on the other hand, frankly admitted and rightly so that neither the petitioners nor any body else were directly charged, by name, in the F.I.R. For killing Faizullah and injuring P.W. Ghazi Marjan. He however contended that on the very next day of the occurrence i.e., on 4-2-1996 P.W. Mushke Alain charged the petitioners, alongwith their co-accused (now on bail), for having killed Faizullah and injuring P.W. Ghazi Marjan, not only in his statement recorded under section 161, Cr.P.C. But also in his statement recorded under section 164, Cr.P.C. He stated that the version given by P.W. Mushke Alain was fully corroborated by the injured P.W., Ghazi Marjan, in his statement recorded on 4-2-1996 immediately after he regained consciousness. He alleged that, in the circumstances, reasonable grounds do exist for believing that the petitioners are connected with the commission of the offences with which they have been charged and that they are therefore not entitled to be released on bail. According to him, the Special Court had rightly rejected their bail petition. He prayed that the petitioners may not be released on bail at this stage.
10. The learned counsel for the complainant also addressed his arguments in detail. He submitted that even if the contention of the petitioners' counsel that the Investigating Officer had conducted the investigations dishonestly, as he had allegedly procured the services of P.W. Mushke Alam and had prompted him-to depose as an eye-witness, against the petitioners, is taken to be correct and consequently the said statement is discarded, being the statement of an installed witness, even then the petitioners were not entitled to be released on bail because the other witness, who was injured, i.e., P.W. Ghazi Marian, liar also charged them directly by name, in his statement, for committing the murder etc. He further stated that in the case in hand it was incumbent upon the petitioners to have shown by cogent evidence that prima facie their case was that of further enquiry and that they were not connected with the commission of the offences with which they were charged and that the petitioners could not take benefit from the weakness of the prosecution case. He was further of the view that if the record of the case is taken into consideration, as a whole, it would reveal that reasonable grounds do exist for believing that the petitioners have committed the offences and that they are not entitled to be bailed out at this stage. According to him this petition is without any substance and deserves to be dismissed.
11. Without going into the merits of the case at this stage and keeping in view the available record I am of the view that the case of the petitioners is that of further enquiry. It is an admitted fact that the occurrence has not been witnessed by any body and it is for this reason that the petitioners have not been charged in the F.I.R. For committing the crime. The contention of alleged eye-witness Mushke Alain that (i) he had seen the occurrence, (ii) had escaped unhurt when was fired upon by the petitioners, (iii) had gone to inform the relatives of deceased (Fatzullah) and injured (Ghazi Marian) about the immediately after the occurrence, (iv) was prevented from lodging the F.I.R.
Because of fear and (v) being dead tired, had gone to his house to take rest, is or is not correct shall be determined by the Trial Court at the trial. Similarly, it would be seen at the time of the trial as to whether or not the injured P.W. (Ghazi Marian), after receiving the injury fell unconscious and was therefore prevented from lodging the F.I.R., immediately after the occurrence, against the petitioners.
12. In view of the two mysteries, mentioned above, coupled with the fact that the petitioners are not named in the F.I.R., I am inclined to hold that, prima facie, reasonable grounds do not exist for believing that they are connected with the commission of the offences with which they have been charged' This bail petition is, therefore, accepted. The petitioners shall be released forthwith' if not required in any other case, provided they furnish bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties, each in the like amount to the satisfaction of the Trial Court.
13. The Trial Court shall see that the sureties are-respectable persons, belong to the settled area of Bannu District and are men of means having sufficient property in their names. The photo copies of their property documents, alongwith their Identity Cards, shall be obtained for record.