' This bail cancellation application is directed against the order dated 15-4-1997 of the learned Additional Sessions Judge, Lakki Marwat vide which Mir Alam Khan accused/respondent, herein, was allowed bail in case F.I.R. No,6, dated 13-1-1996 registered at Police Station Naurang, under section 302/34. P.P.C.
2. The prosecution case is that on 13-1-1996 Hassan Khan then injured now dead made a report in the emergency room of Civil Hospital, Naurang to the effect that he along with his brother Hussain Khan, after offering Asar' prayer on reaching Kaki Road near Hotal Mir Suleman, the accused Mir Alam and his brother Naqibullah emerged at the scene. Under the command of Naqibullah his brother Mir Alam fired a shot with his D.B. Shotgun with which he (complainant) was hit and got injured. The motive for the offence was given to be land dispute between the parties.
'3. Later on the complainant succumbed to his injuries and his report was treated as dying declaration.
4. The arguments of the learned counsel for the parties were heard at length and record of the case thoroughly examined.
5. The accused/respondent was arrested on the same day just after the occurrence in a hot pursuit along with a crime weapon having an empty in its chamber. The crime weapon and the empty recovered was sealed there and then and sent to Arms Expert whose report is in affirmative. The accused/respondent is charged in the dying declaration (F.I.R.) by the complainant then injured which was lodged promptly within 20 minutes after the occurrence. P.W. Hussain Khan brother of the deceased complainant who is named in the F.I.R. As an eye-witness had fully supported the contents of the dying declaration. The learned Additional Sessions Judge, Lakki allowed bail to the accused, firstly on the ground that co-accused Naqibullah who was equally charged in the F.I.R.
Has since been placed in Column No,2 of the challan on the plea of alibi taken by him that he was present in Lahore on the eventful day and time and secondly that by placing the same accused Naqibullah in column No,2 by the police, the entire dying declaration had become doubtful and thirdly, that the challan of the case was not submitted to the trial Court within the prescribed period.
6. The perusal of the record, however, reveals that in bail application moved by the accused- respondent before the Additional Sessions Judge, Lakki, the complainant was not made as respondent and after the enforcement of Qisas and Diyat Ordinance, 1992 the complainant is entitled to notice in bail petition of an accused.
7. Under section 497, Cr.P.C. In offences entailing punishment with death, imprisonment for life or imprisonment for 10 years, bail should not ordinarily be granted unless there exists reasonable grounds for believing that the accused is not guilty of the offence charged with. The superior Courts have timely observed that the offences covered by the provisions of P.P.C. Through Qisas and Diyat Ordinance, 1992, the complainant is entitled to the notice before passing any order which is favourable to the accused. In the instant case the learned Additional Sessions Judge has totally ignored this legal aspect of the case and without affording any opportunity to the complainant passed the impugned order. It is worth mentioned here that co-accused Naqibullah who was previously placed in column No,2 of the challan in the first instance, was later on again placed in Column No,3 thereof vide order dated 25-5-1996 of the Deputy. Inspector-General of Police, Bannu.
8. The submission of challan within the stipulated period is no doubt the foremost duty of the police which if not performed due to some unavoidable circumstances during the investigation, the accused would not be benefited of the lapses of the police for the reasons aforesaid. Besides, for verification of the plea of alibi taken by the brother of the accused-respondent (co-accused), the Investigating Officer had gone to Lahore and recorded statements in support of the same which took sufficient time and hence the delay in not submitting the challan within the prescribed period was occasional. Further, if the I.O./S.H.O. Is found of slackness/ignorance in not submitting the challan to the Court in time then he should be taken to the task as submission of challan under section 173, Cr.P.C. Has no relevancy with the bail matters.
9. In the instant case it is noted that the moment the accused-respondent got himself released on bail, the challan was put in Court within 20 days after the bail order which gives rise to a reasonable suspicion that the delay in submitting the challan to the Court was with mala fide consideration of the prosecution. The police could not be given a right to play with the rights of the people and should not be allowed to sit on the blood of the innocent persons.
10. It appears that the learned Additional Sessions Judge had not thoroughly examined the case file as the fact that the accused-respondent was apprehended after a hectic chase by the police along with the crime weapon having an empty in it, had escaped his notice by giving undue weight to the proposition that no recovery of empty was made from the spot.
11. The learned counsel for the accused-respondent has vehemently stressed that as per medico- legal report there are two entry wounds on the person of the accused one on the right arm with six pellets hole having a corresponding exit. The another wound on the pictorial was given as No,1 while the exit is No,2 but there is no entry wound of pellet under No,3 in the pictorial and submitted that the medical evidence contradicts the dying declaration. Though appraisal of evidence at bail stage is not warranted under the law but apparently from perusal of the pictorial it seems that entry wound No,3 is a re-entry of the pellete of entry No,1 and as such at this stage one cannot say that the medical report contradicts the dying declaration.
12. The learned counsel for the State also supported the arguments advanced by the accused- respondent on the stereotype grounds that the accused-respondent has not misused the concession of bail and further that the challan has since been put in Court.
13. In cases involving capital punishments bail should not be granted to the accused where strong reasonable ground exist. In the instant case the very arrest of the accused-respondent in chase on the spot along with crime weapon is sufficient and strong ground to connect him with the commission of offence and as such he was not entitled to the concession of bail allowed to him on very flimsy grounds.
14. The upshot of the above discussion is that prima facie case exists against/the respondent No,1 which disentitles him to the concession of bail. The impugned order dated 15-4-1997 of the learned Additional Sessions Judge, Lakki Marwat based on erroneous considerations and arbitrarily passed needs to be set aside.
15. Accordingly this application is accepted and the to the accused-respondent No,1 is recalled. He is present in Court, taken into custody and sent to judicial lock-up to await his trial as undertrial prisoner. However, since the challan has been put in Court, the trial Court shall conclude the trial expeditiously.
Bail cancelled.