' Respondents-accused Nos.1 to 3, namely, Fazal Shah, Abdul Marian Sons of Abdul Harlan and Mubarak Shah son of Fazal: Shah, all, residents of Sufaid Dehri, Tehsil and District Peshawar, stand charged for having killed Shafaat All son of Zakirullah on 2-6-1997 by firing at him effectively with their pistols.
2. The deceased's brother, Ghulam Hussain son of Haji Muhammad Ibrahim, reported the matter to the police. His report was, thus, reduced into writing in the form of a murasila on the basis of which F.I.R. No,280 was registered at Police Station Pishtalchat .1, District Peshawar, under sections 302/34, P.P.C. On 2-6-1997. The occurrence was stated by the complainant to have been witnessed by him as well as P.W. Shadat Hussain son of Bahadur Khan, a nephew of the complainant as well as the deceased.
2. Immediately after the occurrence respondents Nos.1 to 3 decamped from the place of occurrence and remained fugitive from law. It was after about a year that they appeared before the Additional Sessions Judge (V), Peshawar (Mr. Muhammad Ayub Khan), by his impugned order, admitted them to pre-arrest bail mainly on the ground that the post-mortem report was not in line with the prosecution story, that the deceased, according to the Police Report, was not of good character and that quite a few F.I.Rs, had been registered against him. The Additional Sessions Judge, therefore, observed that, in the circumstances, the possibility of the deceased being murdered by some one else could not be ruled out. He while admitting the respondents to pre- arrest bail also took into consideration the ages of two respondents who according to him, were 70 years old.
3. Aggrieved by the said order, the petitioner/complainant, Ghulam Hussain, has filed this bail cancellation application.
4. Mr. Muhammad Tehmash Khan, Advocate learned counsel for the petitioner, Mr. Fida Muhammad Khan, Advocate for respondents Nos.1 to 3 and Kh. Azhar Rashid, Assistant Advocate- General for State present and heard at. Length. I have also gone through the record of the case with some degree of care.
5. The main thrust of arguments of the learned counsel for the petitioner was that the pre-requisite for granting pre-arrest bail in cases where murder is committed have been totally ignored by the Additional Sessions Judge. He further stated that the grounds for granting bail before arrest are quite different than the grounds on which bail after arrest is granted. In this respect he placed reliance on case titled Muhammad Arshad and another v. The State and another, decided by an Hon'ble Division Bench of the Supreme Court of Pakistan comprising of his Lordship Mr. Justice Raja Afrasiab Khan and his Lordship Mr. Justice Muhammad Bashir Jehangiri and reported as 1996 Supreme Court Monthly Review 74, wherein it was held: "(b) Criminal Procedure Code (V of 1898) . . . . Section 498.... Pre-arrest bail. Relief of pre-arrest bail is granted only in those matters where it would appear that the registration of such cases was based on enmity/mala fides or where no offence was shown to have been committed on the very face of the record."
6. He next contended that in spite of the fact that there is nothing on the record to suggest, even remotely, that two of the accused-respondents are of 70 years of age but the Additional Sessions Judge, Peshawar made this as a ground to grant them pre-arrest bail. He submitted that old age, by itself would not be a ground for releasing an accused on bail muchless on bail before arrest unless and until it is shown by cogent evidence i,e, educational certificates/medical certificates that they were factually of old age and are also infirm, duly supported by medical evidence. In this regard he placed reliance on the following two cases decided by the Hon'ble Supreme Court of Pakistan:---
(1) 1977 Supreme Court Monthly Review 27. Gul Ahmad v. Masam Khan and 3 others. (His Lordship Mr. Justice Muhammad Gul and His Lordship Mr. Justice Muhammad Afzal Cheema).
"(c) Criminal Procedure Code (V of 1898). . . Sections 497 & 498 ...Bail . Old age...Relevant consideration for grant of bail to persons of old age: Infirmity...No medical evidence in support of old age of accused...Bail not admissible merely on account of old age...
' In the second case, decided by another Division Bench of the Supreme Court of Pakistan comprising of His Lordship Mr. Justice Karam Elahi Chauhan and His Lordship Mr. Justice Nasim Hasan Shah in case Hakim Ali and 3 others v. The State, reported as 1979 Supreme Court Monthly Review 114, the Hon'ble Supreme Court had held:---
(b) Criminal Procedure Code (V of 1898)...Section 497(1), Proviso Petitioner though 70 and 80 years old yet not shown to be sick or infirm. Concession of bail envisaged in proviso, held not attracted in circumstances."
7. Mr. Muhammad Tehmash Khan, Advocate, learned counsel for the petitioner contended that respondents Nos.1 to 3 had remained absconders/fugitive from law for about a year or so and that, therefore, they were not entitled to be admitted to bail before arrest. In support of his contention he placed reliance on case titled Sher Ali alias Sheri v. The State, decided by an Hon'ble Division Bench of the Supreme Court, comprising of his Lordship Mr. Justice Ajmal Mian and his Lordship Mr. Justice Nasir Aslam Zahid, reported as 1998 Supreme Court Monthly Review 190. It was held by their Lordships:-
(d) Criminal Procedure Code (V of 1898).... Section 497.... Bail Absconder...Fugitive from law and Courts loses some of the normal rights granted by the Procedural as also substantive law...
(Absconder).
(e) Criminal Procedure Code (V of 1898) . . . Section 497 ...Bail Abscondence of accused...Effect...
Unexplained noticeable abscondence of accused disentitles him to the concession of bail notwithstanding the merits of the case (Abscondence)."
8. Mr. Muhammad Tehmash Khan, Advocate counsel for the petitioner further submitted that the Additional Sessions Judge had no authority to go deep into the merits of the case, at pre-arrest bail stage, and give his findings regarding the evidence collected by the Investigating Officer, that in doing so he has committed grave illegality. He, in support of his contention, referred to a case (Qadar Mand v. Muhammad Amroze and 4 others) decided by a Division Bench of the Supreme Court comprising of his Lordship Mr. Justice Saiduzzaman Siddiqui and his Lordship Mr. Justice Mukhtar Ahmad Junejo, reported as 1998 Supreme Court Monthly Review 496. It was held by their Lordships:--- "(a) Criminal Procedure Code (V of 1898) Section 497 Bail..
' Appreciation of evidence...........
' Appreciation of evidence cannot take place at bail stage (Evidence)."
(b) Criminal Procedure Code (V of 1898)... Section 497... Penal Code (XLV of 1860), section 302/34 Constitution of Pakistan (1973), Article 185(3)....Cancellation of bail....Evidence on record as collected by police had made out reasonable grounds for believing the accused to be guilty of the offence allegedly committed by them.......
' Petition for leave to appeal was, therefore, converted into appeal and to accused by High Court was cancelled in circumstances."
9. It may be pointed out that in the above mentioned case the Supreme Court had cancelled the by the High Court.
Herein the accused have been admitted the bail before arrest although the evidence so far collected by the Investigating Officer shows that a prima facie case exists against respondents Nos.1 to 3. A perusal of the F.I.R. Would show that it was promptly lodged, Vide: which the complainant had directly charged the three accused for having killed his nephew by firing at him, who received 6 injuries out of which five injuries had exit wounds. Beside this seven (7) empties and two (2) spent bullets were also recovered from the spot. Apparently there are two eye-witnesses who have fully supported the prosecution case. Reasonable grounds, therefore, do exist for believing that respondents are connected with the commission of the crime charged with.
10. In the circumstances it appears that the Additional Sessions Judge (V) Peshawar had not applied his mind to the facts of the case in hand while granting pre-arrest bail to respondents- accused Nos.1 to 3.
11. Confronted with this situation the learned counsel for respondents Nos.1 to 3 had no explanation to refer. He could not pin point as to what enmity/enmosity or was there between the parties for which the complainant has falsely charged them. Similarly he could not refute that the deceased had 5 entrance and 5 exit wounds on his body. He also could not refute the fact that 7 empties and 2 spent bullets were recovered from the spot. All what he said was that the, Additional Sessions Judge has rightly appreciated the evidence collected by the Investigating Officer so far and, thereafter, he granted pre-arrest bail to respondents Nos.1 to 3, in his discretion, which may not be interfered with.
12. Ch. Azhar Rashid, the Assistant Advocate-Cameral, on the other hand submitted that this was not a fit case where pre-arrest bail could be granted by Additional Sessions Judge. He was of view that the appreciation of evidence could not be made at bail stage as was done in this case by the Additional Sessions Judge who had gone to the extent of holding that:--- "The deceased: according to the police report was of not good character. There are F.I.Rs, against him. As such the possibility of being murdered by someone else cannot be ruled out."
13. According to the learned Assistant Advocate-General the Additional Sessions Judge had not recorded a speaking order, in the circumstances of this case, which is accordingly liable to be set at naught.
14. I would not like to dilate upon the merits of the case at this stage, as it may prejudice the mind of the Trial Court but after going through the record I am convinced in my mind that reasonable grounds do exist for believing that respondents Nos.1 to 3 are connected with the commission of the offence charged with, and that the Additional Sessions Judge without the application of his mind to the facts of the case had haphazardly admitted them to pre-arrest bail. The order of the Additional Sessions Judge is only arbitrary but is also perverse and is liable to be set at naught.
15. This petition is accordingly accepted. The pre-arrest to respondents Nos.1 to 3 is hereby recalled.
All of them are present in Court and shall be taken into custody and sent to Judicial Lock-up.