The petitioner stands charged for having committed an offence punishable under section 337- A(iii), P.P.C. Vide F.I.R. No,355, dated 15-3-1999 registered at Police Station, B-Division, Mardan as he is alleged to have facilitated his co-accused, Munir, to have stabbed the complainant (an absconder in case F.I.R. No,584, dated 28-4-1999 registered at Police Station, B-Division, Mardan) .
2. Mr. Khalid Badshah, Advocate learned counsel for the petitioner submits that after his arrest the petitioner was granted bail by the Senior Civil Judge/City Magistrate, Mardan, namely, Zafar lqbal (his name has not been given in the order); that respondent No,1 thereafter went to the Sessions Court for getting the bail cancelled and the Additional Sessions Judge-II, Mardan (Mr. Shahid Naseem Khan) by his order recorded on 13-4-1999 cancelled the bail and sent the petitioner to Jail, mainly on two grounds:- ' Firstly, that the petitioner has facilitated his co-accused in stabbing and injuring the complainant, and ' Secondly, that the petitioner has misused the concession of bail.
3. The learned counsel for the petitioner contends that the Additional. Sessions Judge has not applied his mind to the facts of the case and had cancelled the bail without any rhyme or reason.
He further submits that the Additional Sessions Judge has not taken into account the case-law cited before him, which is to the following effect:-
(a) 1978 Supreme Court Monthly Review 357, Basharat Hussain v. Ghulam Hussain etc.: "It is quite clear from the F.I.R. That respondent No,1 was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No,1 is, therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry and the petitioner was entitled to bail."
(b) 190 Supreme Court Monthly Review 310, Mehmood Akhtar and others: v.
' Haji Nazir Ahmad and 4 others
(b) Criminal Procedure Code (V of 1898), S.497---Penal Code (XLV_of 1860), Ss.302/148 & 149--- Bail--- Accused was alleged to have caught hold of deceased before he was given injuries by his co-accused---Matter with regard to the accused being that of further enquiry. Supreme Court converted the petition into appeal and accused was granted bail."
4. The learned counsel for the petitioner, alleges that the petitioner was rightly granted bail by the Senior. Civil Judge and that the Additional Sessions Judge has committed an error in recalling the same; that the order of the Additional Sessions Judge deserves to be set at naught and the petitioner is entitled to be released on bail in the circumstances.
5. On the other hand, Kh. Azhar Rashid, learned Assistant Advocate-General, for respondent No,2/State, submits that since the petitioner has facilitated the main accused for committing the crime, therefore, he is not entitled to the concession of bail.
6. I have gone through the judgments of the Hon'ble Supreme Court of Pakistan, cited by the learned counsel for the petitioner at the bar, with the able assistance of both the counsel for the parties, and am of the view that the case of the petitioner prima fade is that of further enquiry in the circumstances and that he is entitled to be enlarged on bail.
7. This petition for bail is accordingly accepted.
8. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs,1,00,000 (Rs, one lac only) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar/Deputy Registrar of this Court.
9. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and hail from the settled areas of District Mardan. Attested copies of their property documents/identity cards shall be obtained and placed on file for record.