' The occurrence in this case, registered vide F.I.R. No,218, took place on 31-8-1997 at 1-00 a.m. The report was lodged on the same day at 10-00 a.m. By Mst. Badri Jamala complainant, wife of deceased Akhtiar Muhammad. ' The place where the occurrence took place i,e,, Village Khairoo Khel, is situated at a distance of about 28/29 Kms. From Police Station, Tajori, Tehsil and District Bannu.
2. Stated briefly the facts of the case are that complainant Mst. Badri Jamala, widow of the deceased, was asleep in the house alongwith her family members including the deceased, her husband, on 31-8-1997 at about 1-00 a.m. When she woke up to drink water. She noticed that accused Khushdil Khan (accused/respondent No,1) and Hayatullah (accused/respondent No,2), brother's inter se, sons of Roban Shah, residents of Km Kashmir, duly armed with pistols, were standing by the side of her husband who was sleeping on the cot. Within her sight and in the presence of his co-accused (respondent No,2) accused/ respondent No,1, Khushdil Khan fired at her husband with a pistol. Hayatullah accused/respondent No, 2 kept standing there and did not fire at the deceased. With the report of the fire shot the son of the complainant and the deceased namely, Ghaniur Rehman, a boy of tender age, also got up. The complainant shouted at the accused/respondents as to why they had fired at her husband. In reply thereof they said that they had to kill him. After having killed the deceased both the accused/respondents decamped from the scene of occurrence. The complainant rushed towards her husband who was breathing his last. The occurrence is stated to have been witnessed by Ghaniur Rehman the deceased's minor son in addition to the complainant,
3. The matter was reported to Latifullah Khan, A.-S.I., Police Post, Gambila when he visited the house of the complainant i,e,, the place of occurrence. The said A.-S.I. Reduced the report into writing in the form of a Murasila which was then sent to the police station where, on its basis, F.I.R. No,218 was registered under section 302/34, P.P.C. Against both the accused/respondents.
4. It will not be out of place to mention here that both the petitioners were granted pre-arrest interim bail, probably, on 27-9-1997. However, the same was dismissed as withdrawn by the Additional Sessions Judge (Mr. Shahid Naseem Khan) by his order, dated 30-10-1997. Strangely, within a period of less than seven days i,e,, on 7-11-1997 the said Additional Sessions Judge, when approached by the accused/respondents, released them on bail by his order recorded on 7:11-1997.
5. Aggrieved by the said order, Mst. Badri Jamala, the widow of the deceased has filed this bail cancellation petition wherein she has stated that the Additional Sessions Judge has not applied his mind while granting bail to the accused because one of the accused/respondent No,1, namely, Khushdil Khan, has been charged for having effectively fired at Akhtiar Muhammad and killed him on the; spot. She has accordingly prayed that the bail granted to the accused/ respondents. Be recalled in the circumstances to meet the ends of justice.
6. Mr. Muhammad Karim Anjam Qasooria, Advocate, learned counsel for the petitioner, Mr. Gauhar Zaman Kundi, Advocate, learned counsel for the accused/respondents and Mr. Muhammad Khan Khakwani, Advocate, learned counsel for the State, present and heard at length. I have had the advantage of going through the record with some degree of care with the able assistance of the learned counsel for the parties.
7. It may be stated at the very outset that the Additional Sessions Judge (Mr. Shahid Naseem Khan) was influenced by the fact that the F.I.R. Was not lodged promptly. Secondly, he was influenced by the "case diaries" recorded by the Investigating Officer during the course of investigation. In other words and to put it differently he was swayed by the opinion of the Investigating Officer who was of the opinion that the accused were innocent and falsely charged by the complainant who, according to the rumours in the village, was a woman of bad character. The Additional Sessions Judge appears to have been influenced by the case diaries so much that the same is reflected from his bail order where he clearly mentioned as under:-- "The case diaries reflect other stories. In view of the record of the case of the present petitioner there seems sufficient ground for further enquiry into their guilt."
8. Accordingly the Additional Sessions Judge released both the accused/respondents on bail.
9. The Additional Sessions Judge, as is clear from the record, has failed to apply his mind, purposely or otherwise, to the facts of the case in hand.
10. The delay in lodging the F.I.R. Has been properly/plausibly explained. The occurrence took place in the middle of the night, at the complainant's house, wherein her husband was killed. Accordingly it was not at all possible for her to leave the house at that odd hour and rush to the police station for lodging the report. Similarly the son of the complainant namely, Ghani-ur-Rehman, the alleged eye-witness, being a boy of tender age was also not expected to go to the police station all by himself. The other two persons who were allegedly present in the house were minor girls. They could not be expected to lodge the report. In the circumstances, without dilating upon merits of the case, I am of the view that the delay in lodging the report has been plausibly explained and could not be made the ground for releasing the accused/respondents on bail.
11. Additionally, the Additional Sessions Judge (Mr. Shahid Naseem Khan) seems to have been very such impressed/influenced by the case diaries (Zimnies) recorded by the Investigating Officer which reflected other stories, mostly based on rumours.
12. Since the Additional Sessions Judge has made the diaries as the basis of releasing the accused/respondents on bail, therefore, it had become essential/necessary to go through the said diaries. It may be remarked here that the trend of going through the case diaries and forming opinions regarding the guilt of the accused, is extremely dangerous and it must be deprecated. If such a trend is allowed to continue then in that case the police would be at liberty to incorporate facts extraneous to the case which may be favourable/unfavourable to the accused, just to influence the mind of the Court. I am, therefore, of the view that it was not at all necessary/advisable for the Additional Sessions Judge to have gone through the case diaries. He was expected to assess the evidence C collected by the Investigating Officer tentatively and to form an independent opinion as to whether or not reasonable grounds were there to believe that the accused/respondents had committed the offence. He has failed to give any findings regarding this fact. Merely writing that the case of the petitioners is that of further enquiry would not be enough. The Court which grants bail has to form an opinion, in the first instance, that reasonable grounds do not exist for believing that the accused has committed the offence charged with and, therefore, it has come to the conclusion that the case of the accused was that of further enquiry.
13. On a tentative assessm ent of the material placed on file, I am of the considered view that accused/respondent No,1, Khushdil Khan, who has been assigned specific role of firing at and killing the deceased, is definitely connected with the commission of offence, specially when the ocular version is fully supported by the medical evidence, he was, therefore, not entitled to be extended the concession of bail.
14. However, as far as the case of the other accused/respondent No,2, namely, Hayatullah is concerned, I am of the view that he was entitled to be released on bail as he had not participated in the firing although he was duly armed with a pistol.
15. In the circumstances mentioned above, this bail cancellation application is partly accepted. The concession of bail granted to the accused/respondent No,1, Khushdil Khan, is recalled. He is present in Court and shall be taken into custody and sent to jail forthwith. The petitioner's prayer for the cancellation of bail with regard to accused/respondent No,2 (Hayatullah) is, however, rejected.