' Muhammad Sharif complainant has moved the instant bail cancellation petition against the order of learned Special Judge, Lakki dated 2-6-1997 whereby in case F.I.R. No,131 registered on 10-11-1996 in the Police Station Ghazikhel for committing an offence under section 302/34, P.P.C., the accused/respondent was allowed bail.
2. Facts in brief are that Muhammad Sharif complainant brought the dead body of his brother Muhammad Ayoob to the police station and lodged the report. In his report, he stated that at 11-45 hours he went to the shop of Waseeullah to purchase the household articles (Sauda Sulf) he found his deceased brother Muhammad Ayoob sitting at a cot inside the shop of Waseeullah and one Obaidullah was sitting on a separate cot. Meanwhile Inamullah (accused/respondent) and Yousaf Khan brothers inter se appeared there duly armed with kalshinikovs. Both the accused fired effectively at the deceased who fell down on the cot and both the culprits decamped from the spot. The deceased lost his breath on the spot. The occurrence was witnessed by one Obaidullah apart from complainant. The motive disclosed is that in the morning Inamullah accused/respondent directed Muhammad Ayoob deceased to bring one Zar Wali from the Flour Machine, but Muhammad Ayoob deceased refused to do so which resulted in abusive altercation between Inamullah accused/respondent and Muhammad Ayoob deceased.
3. After registration of the case, the Investigating Officer inspected the spot wherefrom he recovered 4 empty shells of 7.62 bore from point No, A at a distance of two paces from point No,2 (the place of Yousaf Khan accused ) were recovered. Three empties of 7.62 bore were recovered from Point No, B situated at a distance of two feet from Point No, 3 where the accused/respondent was allegedly present and fired effectively at the deceased. The Investigating officer recorded the statements of various persons including Obaidullah the eye-witness on the day of occurrence.
Obaidullah in his said statement under section 161, Cr.P.C. Fully supported the version of complainant. Both the accused were searched but they had gone into hiding. Both the accused were proceeded under section 204, Cr.P.C. And a complete challan was submitted on 30-1-1996.
The accused/respondent surrendered before the Court on 3-4-1997 and applied for ad-interim bail. His ad-interim bail was recalled on 12-4-1997. The accused/respondent after surrendering himself before the Court applied to the Superintendent of Police, Lakki Marwat for re-investigation of the case. It was alleged in his application that on the day and time of occurrence he was not present in his village but had gone to Village Abakhel. His application was entrusted to Inspector, C.I.A. For investigation. The Inspector C.I.A. Examined Waseeullah, the shopkeeper of the shop in front whereof the occurrence took place, Tehseelur Rehman, 1nyatullah, Muhammad Ayoob Khan, Aleem Khan, Amir Nawaz, Mir Salam and Mir Qadir were examined as defence witnesses in support of the plea of alibi raised by the accused/respondent. After recording statements of the aforesaid defence witnesses the Inspector, C.I.A. Reported the innocence of the accused/respondent. The opinion of Prosecution Branch was asked for. The Prosecuting Inspector suggested that in view of the subsequent investigation, the accused/respondent be placed in Column No,2 of the challan.
The discharge of the accused/respondent was not suggested for the unexplained prolong abscondance of the accused/respondent.
4. The accused/respondent was allowed bail without making tentative assessment of the evidence but simply on the ground of placement of respondent/accused in column No,2 of the challan.
5. The learned counsel for the petitioner contended that the accused/respondent has committed the murder of Muhammad Ayoob in broad daylight. He was charged in promptly lodged F.I.R. The version of complainant have got corroboration of the ocular testimony of Obaidullah. The contents of F.I.R. Have got corroboration from the site plan wherefrom the Investigating Officer has recovered empty shells of 7.62 bore from two points close to the points allocated to the accused/respondent and the absconding accused. The motive behind the occurrence is also attributed to the accused/respondent. The accused/respondent remained absconder in the case and he was proceeded under sections 204 and 87, Cr.P.C. All these facts are sufficient to establish a prima facie case against the accused/respondent. The statements of defence witnesses to support the plea of alibi of accused/respondent is nothing but mere concoction. The investigation of the accused/respondent was already complete and challan was submitted. The subsequent investigation was illegal and a collusive action. The accused/respondent was placed in column No,2 without any notice to the complainant. In these circumstances he prayed for setting aside the impugned order and cancelation of the bail granted to the accused/respondent.
6. The learned counsel for the accused/respondent vehemently contended that the accused\respondent has rightly been placed in column No,2 of the challan on the basis of evidence collected during the investigation conducted by the Inspector, C.I.A. Also submitted that in a case where the accused is placed in column No,2 of the challan, the accused becomes entitled to the concession of bail.
7. The learned Assistant Advocate-General, representing the State, also supported the learned counsel for the complainant/petitioner.
8. I have gone through the record and heard the learned counsel at a great length. It is an established principle of administration of justice that in disposal of bail petition a tentative assessm ent of the evidence brought before the Court is made. In a case where the accused in charged for committing non-bailable offence punishable for 10 years or more, the Court shall look into, whether a prima face case exists against the accused or not. If the prosecution brings on record reasonable evidence to connect the accused with the commission of offence, the Court will have no jurisdiction to grant bail to such an accused. If the evidence brought on record by the prosecution does not connect the accused reasonably with the commission of offence, the Court may grant him bail. The Court can also look into the plea of defence at bail stage provided it is confidence inspiring and based on solid proof. In the recent past a new trend has developed in the investigation of criminal cases that the accused persons frankly applied for fresh investigation and the high-ups of the Police Department liberally allowed re-investigation. In the present era it is not difficult for an accused person, more particularly for a hardened and dangerous criminal to manage false evidence in his support. It is also not difficult for a law-breaker, desperate, dangerous criminal to adduce oral evidence in support of his plea of alibi. If this practice is allowed, no guilty person could be awarded punishment. The high-ups of the Police Department should order reinvestigation in appropriate case but should not allow re-investigation with intend to help the criminals or obstruct the smooth administration of justice.
9. After going through the record, including the defence witnesses produced by the accused/respondent before the Inspector C.I.A. During the subsequent enquiry, I came to the conclusion that prima facie the accused/respondent is reasonably charged for committing an offence punishable for more than 10 years. The defence witnesses were examined by the subsequent Investigating Officer when the accused/respondent was let free on ad-interim bail and that too after a lapse of about five months of the occurrence. Had they been the truthful witnesses they would have recorded their statement immediately after the occurrence when the Investigating Officer was holding the investigation of the charge against the accused/respondent.
Had the accused/respondent been innocent, he must have surrendered immediately after the registration of the case but he selected to go into hiding.
10. The Inspector C.I.A. In his report wherein he has exonerated the accused/respondent of the charge , has also opined that accused/respondent is a desperate person. The Investigating Officers are supposed to collect prosecution evidence and to do an impartial investigation. After holding complete investigation by the local Police the accused/respondent was held responsible for the crime, and a challan was submitted against him, but after a lapse of 5 months and procuring defence witnesses by the accused/respondent the Inspector C.I.A. Recommended his innocence. It is for the Court to adjudge the prosecution evidence and defence witnesses. The Investigating Officer cannot overlook or discard the eye-witnesses on the basis of oral defence evidence. To establish the plea of alibi the accused must produce some cogent evidence which could not reasonably be discarded. In a case of identical circumstances Shadi Khan v. Matiullah and another 1989 PCr.LJ 2253, it was observed as follows:--- "With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent and placed him in column No,2 of the challan then he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in Column No,2 because at the time of the alleged occurrence he was found in another village, The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badiuzzaman's case referred to above. The respondent has been assigned in the F.I.R. An effective role in the murder of the deceased and the charge is supported by the statements recorded under section 161, Cr.P.C. The belated statements of Muhammad Ali Pawinda P.W. And others referred to above are not prima facie based on sound material as held in Muhammad Afzal v. Nazir Ahmad 1984 SCM R 429. It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed a tendency that such a plea has been advanced and relying on Badiuzzaman's case, the accused are being declared innocent and placed in column No,2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore even if he has been placed in column No,2 of the challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he has been charged."
11. In view of the prima facie nature of charge against the accused/respondent, I accept this petition for bail cancellation and set aside the impugned order of the Special Judge, Lakki Marwat.
The accused/respondent present in Court is taken into custody and sent to jail to await his trial as under-trial prisoner. He shall be produced before the trial Court on 25th instant.
' These are the reasons for the short order announced today.