' This common judgment shall dispose of two Criminal Miscellaneous Nos.63 of 1996 and 64 of 1997, as both have arisen out of one and the same incident.
2. Facts of the case giving rise to the said petitions in brief are that on the report of Zaibullah, a case F.I.R. No,177, dated 10-11-1995 was registered at Police Station Lakki Marwat under section 302/324/148/149, P.P.C. And section 13, Arms Ordinance to the effect that on.The eventful day at 16- 30 hours the complainant alongwith his son named Tareenullah, Mustafa and Damsaz, sons of Mumtaz were on their way to village Said Ali and on reaching near the lands owned by Darey Shah, accused Khanzada, Wazir, sons of Zahooruddin, Karam son of Khanzada and Momin, all armed with klashnikovs while Nawaz armed with .303 bore rifle emerged. On the direction of Khanzada and Wazir, Karam and Momin fired at Tareenullah with which he was hit and died there and then. Motive for the offence was given to be previous firing between the parties.
3. Karam Khan accused after arrest applied for bail to the Special Judge, Lakki but in vain and has, therefore, filed Criminal Miscellaneous No,64 of 1997 for his release on bail. Accused Momin alias Sultan Sikandar was admitted to bail by the Ilaqa Magistrate per his order, dated 18-1-1996 while accused Khanzada was released on personal bond 'by the S.H.O. Concerned on 24-12-1994. The learned Special Judge, Lakki had refused cancellation of bail of the said two accused on 4-4-1996 and the complainant has now filed Criminal Miscellaneous No,63 of 1996 for cancellation of the bail allowed to the said two accused.
4. In the instant case, five accused are charged in all of whom two are absconding. Petitioner Karam and respondents Wazir alias Sultan Sikandar and Khanzada were armed with klashnikovs together with their absconding co-accused Momin while Nawaz absconder is assigned .303 bore rifle. From the site plan six empties of .303 bore rifle were recovered while no empty of klashnikov was found by the Investigating Officer. Only two shots proved effective, one which hit the deceased and the other injured the P.W. Damsaz. Both the injuries sustained by the deceased and the injured P.W. Were found on posterior aspect and the doctor had found scalp over the wound of the deceased meaning thereby that it was caused much before the time of his examination. Besides, accused Khanzada and Wazir was attributed the proverbial role of Lalkara and were armed with klashnikov and this fact does not appeal to mind that when both of them were armed with klashnikovs, then why they asked their co-accused to fire at the deceased and the injured P.W. The site plan is in contradiction with the version given in the F.I.R., as the deceased was shown at point No,1, injured P.W.2 at point No,2 and both these points are situated in a wheat crop while in the F.I.R.
It is mentioned that the deceased and the injured were being followed by the complainant and his other companions on a thoroughfare. Even points 3 and 4 attributed to complainant Zaibullah and P.W. Mustafa were not in the range of points 1 and 2. The places where the accused are shown in the site plan are near in distance to the complainant and P.W. Mustafa. The delay of four hours in lodging the report coupled with the non-recovery of any empty from the spot, when all taken together, makes the case at present arguable for the purposes of bail. Above all, the number of injuries sustained by the deceased and the injured P.W. Do not commensurate with the numbers of the accused who all are members of one family, which also brings the case of petitioner Karam Khan within the ambit of further inquiry. He is, therefore, admitted to bail provided he furnishes bail bond in a sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Special Judge.
5. In so far as the bail cancellation application against Sultan Sikandar alias Wazir and Khanzada is concerned, accused Khanzada was released by the S.H.O. Under section 169, Cr.P.C. On personal bond, which in absence of a report of Police Officer under section 173, Cr.P.C., or taking cognizance by the Court under section 190(1)(c), Cr.P.C. Could not be interfered with.
' Section 169, Cr.P.C. Relates to cases of insufficiency of evidence to sustain the trial of the accused, or lack of reasonable grounds of suspicion to justify the forwarding of accused to a Court for trial and the function is to be performed by the Officer-in-Charge of the police station and none. Else.
After submission of report, Court may order further investigation under section 156(3), Cr.P.C. Or may take cognizance of the case under section 190(1)(c), Cr.P.C. Or when a report is sent to him under section 173, Cr.P.C., he may either discharge the bond or order the re-arrest of accused, but the prerogative of the Officer-inCharge of the police station in releasing the accused on bond under section 169, Cr.P.C. Is not to be interfered with Criminal Miscellaneous No,93 of 1996 qua Khanzada respondent is, therefore, dismissed.
6. The case of accused/respondent Sultan Sikandar alias Wazir Khan is, however, on different footings from that of his co-accused; He was released on bail by the learned Judicial Magistrate ignoring the fact that the instant offence being a scheduled one falls within the exclusive jurisdiction of the Special Court and hence his impugned order is patently illegal and was liable to have been set aside by the forum below. An uncertified copy (placed on file) passed by the august Supreme Court in Criminal Petition No,104 of 1994 was presented before the Court by the petitioner's counsel wherein it has been held that mere allegation of use of klashnikov in the F.I.R. Takes out the case from the ordinary forum to the forum of Special Courts constituted under Suppression of Terrorist Activities Act, 1975 and neither the Magistrate nor the Sessions Judge could take cognizance of the bail matters.
7. In consequence, Criminal Miscellaneous No,93 of 1996 qua respondent No,1 Sultan Sikandar alias Wazir Khan is accepted on the ground of jurisdiction alone being incompetently admitted to bail by the Judicial Magistrate and his impugned order, dated 18-1-1996 and that of the Special Judge, dated 4-4-1996 are, therefore, set aside. He is present in Court, taken into custody and sent to jail to await his trial as an undertrial prisoner. He is, however, at liberty to move the competent Court for the purpose.