1. 1.This single Order will dispose of the abovementioned two applications for cancellation of bail, as both of them arise out of one and the same F.I.R.
2. 2.According to the report lodged by Rashid Iqbal son of Mir Zaman, resident of Kumar Bandi, Tehisl and District Abbottabad, the prosecution story runs thus:-- That the maker of the report on 15-10-1996 at 12-10 p.m. went to the Police Station Gilgit and lodged a report before Station House Officer to the effect that he is a cleaner of Truck No.GITA-2937 and while Abdul Sattar resident of Abbottabad was the driver of the Truck in question; that on 14-10- 1996 at Sost situate within the limits of Hunza, one Javed resident of Bonji engaged their truck from Sost to Gilgit for Rs,5,500 and his goods were loaded in the truck and at about 5 p.m. after loading the goods, they started for Gilgit and at about 9 p.m. when they crossed the Check Post at Ganish, a car of black colour which had a revolving light on its roof, over took the truck and proceeded ahead, while the Driver Abdul Sattar stopped the truck at Petrol Pump Aliabad, in order to fill the diesel in the truck and thereafter they proceeded towards Gilgit; that at about 12.30 a.m. when they covered a distance of 13 k.m. ahead of Sikandarabad towards Gilgit, the aforesaid car once again came from behind and crossed the truck and after covering a little distance, the car was stopped on the road in a slanting position and the revolving light on the roof of the car was on; that the driver and the cleaner took it to be a police car and therefore stopped the truck; that from the said car some unknown persons who were armed with automatic weapons started firing, as a result of which Abdul Sattar driver received bullet injuries on his head and chest, while the cleaner also sustained fire-arm injuries on his arm and other parts of the body, when the driver was hit, the truck became out of control and it collided against the said very car, from which the unknown culprits had fired shots at them; that Abdul Sattar breathed his lost in the truck, while the cleaner in injured condition ran back and after covering some distance, he climbed a mountain and spent the night in a cave and at dawn he came down to the road and found that both the truck and dead body of the driver were missing; that Rashid Iqbal in injured condition left for Gilgit in a car, which was proceeding towards Gilgit, in order to make a report at the Police Station.
3. On his arrival at Police Station Gilgit, Rashid Iqbal reported the matter to Syed Buzruk Shah, S.H.O. who recorded his report and registered a case under section 302/324/307/392/341, P.P.C. read with section 17 of the Haraabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No.254 of 1996.
4. Thereafter, the Investigating Agency came in motion. Buzruk Shah, S.H.O. handed over the investigation to Fazal Ahmad S.I.P., who left for the spot. Rashid iqbal in injured condition was sent to District Headquarter Hospital Gilgit for medical examination and treatment and his blood- stained clothes were also taken into possession by the police.
5. Fazal Ahmad S.I.P. on his arrival at the scence of occurrence, recovered Identity Card of Abdul Sattar driver (deceased) from his pocket alongwith Rs,6,224 and one blood-stained pocket-diary was also taken into possession in the presence of Alamger and Atta-ur-Rehman, marginal witnesses. The Investigating Officer collected 20 empty shells of 7.62 M.M. rifle, four pieces of mudguard of the damaged car, three pieces of mirror light and the pieces of brake-light of the said car were also taken into possession from the scene of occurrence by the very Investigating Officer Fazal Ahmad,' in the presence of Babar Khan and Ghulam Mehdi, marginal witnesses.
6. Buzruk Shah S.H.O. on his arrival at the scene of occurrence, took the chain of investigation in hand from Fazal Ahmad S.I.P. and prepared site plan.
7. Point No.1 in the site plan indicates the place where the accused had blocked the road by parking their car in a slanting position; Point No.2 shows the place, where the driver had stopped the truck, the distance between point No.1 and Point No.2 is 3 paces; Point No.3 in the site plan, denotes a Pakka drain where the dead body of Abdul Sattar driver was lying at a distance of 5 paces from point No.2; Point No.4 in the site plan, shows the place wherefrom the scattered empty shells of 7.62 M.M. Rifle were collected by the Investigating Officer. The Investigating Officer affected the arrest of accused Shahzad Wali, Younus and Sherbaz on 16- 10-1996 at different times. Shahzad Wali accused while in hand-cuffs led the police to his house situate at Khomer, wherefrom at his instance and pointation 10 bundles of China cloth and toys which he had concealed in a store in the southern corner of his house and the same were taken into possession by the Investigating Officer in the presence of Khadim Hussain and Syed Ismail Shah, marginal witnesses.
8. The said bundles, which were recovered at the instance and pointation of Shahzad Wali accused, were duly identified by the owner of the goods namely, Jan Alam.
9. On 16-10-1996, Younus accused while in hand-cuffs led the police to the vacant house of one Nasir at Jutial, a close relative of Shahzad Wali accused, where Shahzad Wali had parked his car which was allegedly used in the commission of offence, the said Car bearing No.PG.6982 in a damaged condition was taken into possession in the presence of Jan Alam and Khadim Hussain, marginal witnesses.
10. Younus accused informed the police that the keys of the car, were in possession of Shahzad Wali accused, who is the owner of the aforesaid car, thereafter accused Shahzad Wali was brought to the said vacant house of Nasir, situate at Jutial, and accused Shahzad Wali opened the deck of the car with the keys, which were in his possession, wherefrom unlicenced S.M.G. bearing No.ED-6712-N Made in USSR alongwith magazine and one folding Kalshnikov No.56-65534 with magazine and two spare magazines alongwith 40 live rounds of 7.62 M.M. Rifle were recovered from the deck of the very car in the presence of the very marginal witnesses.
11. During the search of the deck of the very car, one set of blood-stained rubber gloves, one revolving light etc. were also taken into possession.
12. The blood stained clothes of accused Sherbaz were taken into possession by the Investigating Officer, in the presence of Abdul Bhari and Zaidullah, marginal witnesses.
13. 3.The entire prosecution case hinges on the circumstantial evidence, in the shape of recovery of 10 bundles of China cloth from the house of Shahzad Wali accused, which he had concealed in a store room situate in the southern corner of his house, the recovery of unlicenced S.M.G., Folding Kalashnikov with magazines and two spare magazines alongwith 40 live rounds of 7.62 M.M. Rifle, one set of blood-stained rubber gloves, one revolving light etc. from the deck of the black car at the instance and pointation of Younus accused from the vacant house of Nasir, resident of Jutial, who is a close relative of Shahzad Wali accused, besides this, the recovery of 37 bundles from a shop at Danyore at the instance and pointation of Younus accused, the shop in question was taken on rent by the three accused.
14. 4.It is also mentioned in the F.I.R. by Rahsid Iqbal, lodger of the report that the truck became out of control, when the culprits fired shots at them and the truck collided against the black car.
15. 5.Mr. Hafizur Rehman, District Attorney representing the State and Malik Haq Nawaz, Counsel for the accused/respondents were heard at length and record of the case was perused with their able assistance.
16. 6.The learned District Attorney put a lot of stress during the course of his arguments that the Sessions Judge has passed an illegal order by allowing bail to the accused/respondents. He argued that no doubt, section 302/324/307, P.P.C. are compoundable and the legal heirs of the deceased Abdul Sattar driver have compromised the murder case by receiving three lac rupees from the accused party and the impugned order is valid upto that extent, but so far section 392, P.P.C. and section 17 Haraabah are concerned, these sections are not compoundable and fall under the prohibitory clause of section 497, Cr.P.C. He further stated that when a Decoity takes place on a highway and during the transaction a murder takes place then the offence falls under section 17(4), Haraabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which reads as under:--
(4) Whoever, being an adult, is guilty of Haraabah in the course of which he commits murder shall be punished with death imposed as Hadd.
17. 7.The learned District Attorney also stated that in the case in hand, all the three accused are adults and they have committed dacoity on the highway by killing Abdul Sattar driver and injuring Rashid Iqbal cleaner of the truck by firing at them with their automatic weapons from the black car belonging to Shahzad Wali accused and the Sessions Judge was not legally correct by incorporating in his impugned order that punishment for Haraabah is 14 years with whipping not exceeding thirty stripes and the impugned order is altogether liable to be set aside.
18. 8.On the other hand, Malik Haq Nawaz, Advocate appearing on behalf of the accused/respondents argued that section 302/324/307, P.P.C. are compoundable and the matter has been patched up between the legal heirs of the deceased Abdul Satar and accused party, who paid three lac rupees as "Diyat" to the legal heirs of the deceased and referred to the statements of Mst. Sakina Bibi widow of Abdul Sattar deceased and Sardar Muhammad brother of the deceased as well as the statement of Rashid Iqbal, cleaner of the truck who had sustained bullet injuries on different parts of his body during the dacoity on the highway.
19. 9.When the learned Counsel for the accused/respondents was asked as to whether section 392, P.P.C. and section 17(4) of the Haraabah Offences Against Property (Enforcement of Hudood)
20. Ordinance, 1979 are compoundable or not. He frankly conceded and rightly too that when a dacoity is committed on the highway by an adult person and during the course of which, he commits murder shall be punished with death imposed as Hadd.
21. 10.From the bare reading of section 17(4) of the Haraabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979, it is crystal clear that, whoever, being an adult, is guilty of Haraabah in the course of which he commits murder shall be punished with death as Hadd, the Sessions Judge Gilgit has not applied his mind regarding this section of law.
22. 11.Keeping into consideration the circumstantial evidence, in the shape of recoveries as mentioned above, coupled with the inculpatory confessional statement of accused Sherbaz recorded under section 164, Cr.P.C. by Muhammad Abbas, Assistant Commissioner/MIC Gilgit on 29-10-1996, prima facie, the accused/respondents are linked with the offences under section 392 P.P.C. and section 17(4) of the Haraabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which are not compoundable and the punishment for Haraabah is the forfeiture of life as Hadd, which falls within the prohibitory clause of section 497, Cr.P.C. the accused/respondents are not entitled to bail. The result is that I recall the impugned orders and the accused/respondents present in Court on bail, are taken into custody and remanded to judicial lock-up as under trial prisoners.
23. 12.Before parting with the judgment, it is disquieting to note that Sessions Judge Gilgit has passed the impugned order without applying his mind to section 392, P.P.C. read with section 17(4) of the Harabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which are not compoundable and fall under the prohibitory clause of section 497, Cr.P.C. but on the other hand, Mr. Ghaznavi Sessions Judge Gilgit kept his eyes shut to this aspect of the case that in a dacoity case on the highway, when murder takes place, the punishment imposed is death as Hadd, while going through the order, one can get the impression that Mr. Ghaznavi was under great pressure, political or local which compelled him to accept the bail application by releasing all the three accused/respondents on bail and this action on his part naturally tells upon his integrity. Moreover, it affects adversely the image of the judiciary in eyes of public.
24. 13.Copies of this order be circulated among all the Sessions Judges and Judicial Magistrates for their future guidance.
25. 14.The main case under section 302/324/307/392/341, P.P.C. and section 17 of the Haraabah Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 13(B) No.20 of Arms Ordinance 1965 stands transferred from the Court of Mr. Mahmood Ghaznavi, Sessions Judge Gilgit to the Court of Mr. Muhammad Ali, Sessions Judge Diamer for disposal, with the direction that he should try the case at Gilgit as and when he happens to be on tour to Gilgit.