1. Petitioners herein are under arrest in case F.I.R. No.17 dated 9-3-1997 for offences punishable under sections 337-F (ii) and (v) 337 (ii), P.P.C. registered at Police Station Khuram. Petitioners who were refused bail by the Civil Judge/Judicial Magistrate, Banda Daud Shah vide his order dated 23-4- 1997 and by the learned Sessions Judge, Karak vide his order dated 6-5-1997, have come to this Court for the said purpose.
2. 2.Facts of the case as appear in the F.I.R. are that Niaz Bat Khan (now dead) lodged a report on 3- 3-1997 that on the same day he alongwith his wife and daughter Mst. Tahira (wife of Jehanzeb absconding co-accused in the case) were present in their house when accused Jehanzeb, Aurangzeb, (absconders) Fahim, Mukhtiar and Habibullah (petitioners Nos.2 and 3) all sons of Mastan (petitioner No.1) entered their house duly armed with axes and caused him and his wife injuries and also took away his daughter Mst. Tahira by use of force. Mst. Bibi Shoda the injured wife of complainant supported the narration of the complainant and in addition to that also charged Mastan petitioner No.1 and his wife Mst. Beguma for causing injuries to them. However, she attributed her own injuries exclusively to Mst. Beguma, Jehanzeb and Aurangzeb.
3. 3.Accused Jehanzeb and Aurangzeb are still at large and the alleged abductee Mst. Tahira has also not been recovered so far. As per medical report of Mst. Shoda radius and ulna of her right hand was found fractured and described as deformed. The Medical Officer also reported six injuries on the person of Niaz Bat Khan complainant with the opinion that his right femer is fractured and four injuries were described as incised wounds.
4. 4.In view of the medical report the injury on the person of Mst. Shoda was found by the learned Sessions Judge as "Itlaf-i-salahiyyat-i-udw" punishable under section 334, P.P.C. and falls under the prohibitory clause of section 497(1), Cr. P. C.
5. 5.The learned counsel for the complainant in the very outset pointed out that the section of law has been changed from section 337 to section 334, P.P.C. and petitioners are required to move the lower forum for grant of bail under the changed section of law. The learned counsel for the accused-petitioners while refuting the objection raised by the counsel for the complainant maintained that petitioners are seeking bail in the circumstances of the case and they were refused bail by the lower Courts after evaluating the facts on record and the mere change in the section of law does not debar this Court from disposal of the present criminal misc. for bail.
6. 6.The learned counsel for the petitioners vehemently contended that the petitioners were initially charged under section 337, P.P.C. which is punishable upto five years and does not fall under the restrictive part of section 497(1), Cr.P.C. However, he submitted that the Courts can change the section of law after taking cognizance of the case when complete challan is submitted to Court.
7. This would be seen at the trial that whether the injury caused to Mst. Shoda falls under the ambit of "Itlaf-i-salahiyyat-i-udw" and till the examination of the Medical Officer on that point this finding of the Sessions Judge is premature. He further contended that Fahimullah and Mst. Beguma have already been allowed bail by the Sessions Judge, case against them is at par with the petitioners and on the principle of consistency the petitioners are entitled to be allowed bail. Further submitted that petitioner No.1 who is serving as D.S.P. Afghan Refugees has been reported on duty at the relevant time. Even otherwise he has not been attributed the injuries caused to Mst. Shoda while Niaz Bat Khan has not charged him in his first information report.
8. 7.The learned Additional Advocate-General while supporting the order of the learned Sessions Judge whereby petitioners were refused bail contended that parties are related inter se and in the absence of previous enmity or mala fide on the part of the complainant, there are no reasons to disbelieve the statements of the injured P.Ws. He further contended that in view of the medical report the case against the accused falls within the ambit of section 334, P.P.C. punishable for 10 years and the petitioners cannot claim the concession of bail unless their case falls within the exceptions contained in section 497(1), Cr.P.C. Co-accused Fahimullah was released on the basis of age while Mst. Beguma was released on the basis of sex. Therefore, the cases of both the said accused are distinguishable from the case of petitioners. The plea of alibi raised by petitioner No.1 was inquired into by the Investigating Officer but found false.
9. 8.The learned counsel for the complainant adopted the arguments of the learned Additional Advocate-General and in addition to that submitted the abductee Mst. Tahira has not been recovered so far and showing leniency towards the present petitioners may affect the investigation of the case. Petitioner No.1 who is serving as D.S.P. is an influential person who has managed a false plea of alibi by obtaining a certificate from his subordinate. There is every likelihood that he may tamper with the evidence if allowed bail.
10. 9.After hearing the learned counsel at the Bar and going through the record of the case without dilating upon the merits of the case, I found the case against petitioner No.1 of further inquiry in the sense that he was not charged by the complainant Niaz Bat Khan even for presence at the venue of occurrence although Mst. Shoda an injured P.W. has charged him alongwith his wife but she has not attributed any of her injuries to petitioner No. 1. As is evident from the record, parties are related inter se, the daughter of complainant was married to Jehanzeb absconding accused, their matrimonial relations became strained and she left the house of her husband and started living with her parents. It appears that said Jehanzeb, the husband of Mst. Tahira may have managed to bring home his wife but it seems improbable that five brothers with their parents should manage an attack on the house of his in-laws. In these facts and circumstances of the case, the case against Muhammad Mastan petitioner No.1 requires further inquiry and till then he is entitled to be released on bail. As for petitioners Nos.2 and 3, if the prosecution evidence is left unrebuted they will be awarded punishment for causing "Itlaf-i-salahiyyat-i-udw". In these circumstances petitioners Nos.2 and 3 are prima facie involved for commission of an offence punishable under section 334, P.P.C. and they are not entitled to the concession of bail.
11. 10.As a result of above discussion the bail application in respect of Muhammad Mastan is allowed and he is directed to be released on bail provided II he furnishes bail bond in the sum of Rs,1,00,000 (Rupees One Lac) with two sureties each in the like amount to the satisfaction of Magistrate 1st Class/Magistrate on duty. The prayer of bail of Mukhtiar-ud-Din and Habibullah II petitioners sons of Muhammad Mastan is declined in the circumstances of the case. These are the grounds for my short order announced on 11-8-1997.