' This single order of mine would dispose of Criminal Miscellaneous No,141.1 of 1997 (Javed Iqbal v.
Abdul Malik and `others) and Criminal Miscellaneous No,181 of 1998 (State through Advocate- General N.-W.F.P. v. Abdul Malik and others), as in both these petitions the validity of order, dated 3- 12-1997 of learned Additional Sessions Judge, Kohat has been challenged through which respondents who are accused in case FIR. No,395, dated 15-8-1997 under section '302/324/34, P.P.C.
Of Police Station Saddar, Kohat were released on bail.
2. Case was reported by Javed Iqbal to the police for the murder of Amin-ur-Rehman his brother- in-law in which the three respondents, namely, Abdul Malik, Asghar Hussain and Aftab Hussain were charged along with Jaffar Hussain, the absconding accused. According to the report, other than Asghar Hussain respon6,7u rest of the accused were armed with Topaks and have started indiscriminate firing on the complainant and the deceased when they were on their way back to their village. Motive given was that the accused were having some land dispute with Muhammad Ali owner of the land. This motive was explained during investigation when one Salahuddin son of Muhammad Ali was examined according to which Amir Zada P.W. Father of the complainant was tenanting the land belonging to Muhammad Ali and Abdul Malik respondent made some encroachment over the said land for which Amir Zada protested not only to Abdul Malik but has also lodged his complaint to Salahuddin P.W. Over which Abdul Malik was annoyed.
3. Bail has been granted to the respondents on the ground that there is delay of three hours in reporting the occurrence, that, there is one fire-arm entry wound on the person of the deceased while three persons have been charged for firing, that, no empty shell has been recovered from the alleged places of the respondents as per site plane.
4. Learned counsel for the complainant at the very outset submitted that the order of , the learned Additional Sessions Judge is liable to be set aside on the short ground that complainant who had a vested right under the enforced dispensation of criminal justice to the right of hearing which was not allowed to him as is evident in the opening para. Of the impugned order.
' Next, it was contended that mere delay in making the report in absence of previous blood feud enmity would not be sufficient for allowing bail where the accused stands directly charged in the report. It was further submitted that when there is a charge of indiscriminate firing and where deceased has received one fire-arm entry wound, then all who have fired are to be held vicariously liable and hence no benefit of doubt at bail stage on this score could be extended. As for non- recovery of empties, it was argued that the site plane would -show that the occurrence took place in AIgada (dried rain water channel), hence the non-recovery of empties was not very material.
5. Learned counsel for the State in Criminal Miscellaneous No,181 of 1998 adopted the arguments advanced by the learned counsel for the complainant and added that the grounds on which bail has been allowed are touching the merits of the case, hence, the order is bad in law and is liable to be set aside.
6. Learned counsel for the respondents repeated the above three points which prevailed before the learned Additional Sessions Judge while allowing bail and in addition submitted that bail once allowed by a Court of competent jurisdiction is not ordinarily cancelled unless there are allegations of its misuse by the accused or they have repeated similar offence or that there is likelihood of respondents going into abscondence. Learned counsel in support of his contentions referred to 1997 SCM R 915 and PLD 1996 SC 241. The judgments cited above are on the point that consideration for bail and its cancellation are different. Bail once granted is liable to cancellation in exceptional cases that too when there are strong grounds.
7. Before dilating upon the arguments addressed by both the sides on merits, I would like to observe that after repeal of section 299 to section 338, P.P.C., and their reinsertion through Qisas and Diyat Ordinance which later passed by the Parliament through enactment, offences under the older sections were considered to be offences against the State while under the present law State has got the secondary role whereas the victim or heirs of the victim have assumed primary position. Under section 309, Pakistan Penal Code adult sane Wali of the deceased have been given the right of waiver and so is the case of victim. Under section 310 of Pakistan Penal Code Qatl-i- Amd and other bodily injuries caused to the person have been made compoundable. Section 345, Cr.P.C., has also been correspondingly amended and under subsection (2) persons appearing in column No,3 of the table appearing under the section have been given the right to compound the offence with the permission of the Court before which any prosecution for such offence is pending.
' The above visible change in law where offences mentioned therein are now offences against person and accused if found guilty, the victim or legal heirs of the deceased given the right of Qisas or waiver and compounding the offence was with the object to bring such offences within the ambit and scope of Islamic Criminal Jurisprudence.
8. The complainant/victim/heirs of the deceased or victim having the right under the law either to waive their right of Qisas or to compound the offence, would, thus, make them necessary party at every stage of the trial including the bail application. In Muhammad Ashraf v. Dure Aman and another (PLD 1983 Pesh. 151) his Lordship Mr. Muhammad Bashir Jehangiri now a Judge of the august: Supreme Court of Pakistan has held that under the new dispensation of justice,, State as well as complainant are entitled to a notice for grant of bail to an accused whose case is not even covered by the prohibitory clause of section 497, Cr.P.C., and who is entitled to bail as of right.
9. The impugned order shows that the learned Additional Sessions Judge on the receipt of report that complainant has shifted to his village did not bother to issue process on his village address and proceeded to hear the application, which application was accepted and bail granted.
Therefore, complainant was deprived of legally vested right which makes order, dated 3-10-1997 unsustainable.
10. Learned counsel for the petitioner and the State did not seriously press for the cancellation of bail as against Asghar Hussain, as he has not been attributed any firing rather was said to be empty-handed, at the time of occurrence. Learned counsel for the complainant has also forgone his right of non-hearing to the extent of Asghar Hussain by the learned Additional Sessions Judge as he felt satisfied having been heard before this Court. Therefore, on the basis of merits a case is made out as fur Asghar Hussain respondent is concerned and even if he was not allowed bail by the learned Additional Sessions Judge this Court would have allowed him bail. Therefore, his bail is not cancelled.
11.Now reverting to merits of the case, Abdul Malik and Aftab Hussain respondents have fired along with absconding accused as per version given in the F.I.R. They have been given effective role and mere presence of one entry wound would not exonerate either of the two to make them entitled to bail because not only they under the law are vicariously liable but also because even ineffective firing on the deceased and the complainant read with section 34, P.P.C., and section 324, P.P.C., which is also punishable up to 10 years' imprisonment would keep the case of the two respondents within the scope and purview of the prohibitory clause of section 497, Cr.P.C, The delay in making the report, if any, is be explained at the trial. Motive for the killing has elaborately been given in the statement of Salahuddin son of Muhammad Ali recorded by the police. There is no previous blood feud enmity nor there are any sinister designs which could have prompted the complainant to have charged the accused respondents Abdul Malik and Ahab Hussain.
For reasons stated above, the order of the learned Additional Sessions Judge allowing bail amounts to deep appraisal of evidence and the facts taken note of could be considered at the trial but not within the contemplation of section 497, Cr.P.C., for which, what is to be seen is, if there are reasonable grounds to believe that the accused is guilty of the offence he is charged with. Such "reasonable" ground prima facie do exist as against the respondents Abdul Malik and Aftab Hussai to them is, therefore, cancelled. They are present in Court and are taken into custody and are directed to be sent to the judicial lock-up as under trial prisoners.