' Briefly stated the facts of the case are that one Niaz All son of Subaz Ali was facing trial at Peshawar in narcotic case registered vide F.I.R. No.24, dated 21-6-1997 under section 6/7/8/9 of the Control Narcotic Substance Act, 1997, when in the meantime, a Suit (No.34/FC of 1998) was instituted against him in Marwan in the Family Court.
2. He was, therefore, summoned to appear before the Judge, Family Court, Marwan on 21-3-1998.
He was accordingly dispatched from Central Jail, Peshawar to Marwan Jail on 19-3-1998 so as to enable him to appear before the Family Court on 21-3-1998. He was, however, released from Marwan Jail on 20-3-1998 for which the petitioner, the Assistant Superintendent of Jail, District Jail, Marwan, has been charged by the Superintendent Jail, Marwan/complainant/Khalid Abbas Khan who had addressed Letter No.660, dated 20-3-1998 to the S.H.O., Police Station "A" Division, Marwan.
On me basis of the said letter F.I.R. No.300 was duly registered under section 419/420/ 221/223/224, P P.C., in the first instance, on 20-3-1998.
3. It appears that during the course of investigation certain other sections of P.P.C. Were added, on various dates, as is clear from the attested photo copy of the F.I.R. However, it is not clear as to when and by whom section 120-B, P.P.C. Was added i.e., before or after the addition of section 468/471, P.P.C. Similarly it is not clear from the record as to why and when and by whom section 222, P.P.C. Was added.
4. The learned counsel for the petitioner, therefore, vehemently contended that all the subsequent sections of law were added by the S.H.O., maliciously and with mala fide intention, at the instance of the Superintendent Jail, merely to bring the case of the petitioner within the prohibitory clause of section 497, Cr.P.C. So that he is denied the concession of bail.
5. He next submitted that the petitioner, after having received the information about the registration of case against him, got transitory bail from the Additional Sessions Judge, Dario Mr. Muhammad Tariq Wali and then appeared before the Additional Sessions Judge (I), Mardan (Syed Afsar Shah) on 1-4-1998. The Additional Sessions Judge (I) initially extended the interim hail to 6-4-1998 but on 6-4-1998 recalled the interim bail.
The petitioner was resultantly arrested.
6. According to the learned counsel for the petitioner, the petitioner applied for bail to the Senior Civil Judge/City Magistrate which was rejected on 2-5-1998. His subsequent bail petition was rejected by Malik Ghulam Mohyuddin, Sessions Judge; vide his order, dated 26-5-1998. 1-fence this petition.
7. Mr. Katnran Aril, Advocate learned counsel for the petitioner and Kh. Azhar Rashid learned Assistant Advocate-General for State present and heard. Record of the case perused.
8. The charge against the petitioner, in the main, is that he had facilitated the escape of accused Niaz All son of Subaz Ali, alleged to have been involved A in a narcotics case wherein the maximum punishment provided is death or imprisonment for life.
9. Admittedly F.I.R. No,300 was registered on 20-3-1998 on the complaint of Khalid Abbas Khan, Superintendent Jail, District Jail Mardan. The petitioner, after having failed to procure bail from the lower Courts, has come to this Court for the redress of his grievances saying that he is innocent, falsely charged by me Superintendent bail, as a result of family enmity, and, thus, liable to be released on bail tilt the decision of the main case on merits.
10. A perusal of the record would show that complainant Khalid Abbas Khan, Superintendent Jail, District Jail, Mardan has not been examined under section 164, Cr.P.C. So far. Similarly his Deputy Superintendent Jail has also not been examined under section 164, Cr.P.C. It may be remarked here that the petitioner has categorically alleged that he was on leave on the day of occurrence, vide his application, dated 20-3-1998, and that his leave had been duly sanctioned by the complainant who had at the same time directed that in his absence the Assistant Superintendent Jail, namely, Zafar Iqbal, shall perform his (petitioner's) duties. Ironically, Zafar Iqbal has also not been examined so far under section 164, Cr.P.C. Strangely, the statements of all the three material witnesses have not been recorded even under section 161, Cr.P.C. By the Investigating Officer. This indeed is quite objectionable and is extremely uvireasonable. In fact it is not understandable at all.
11. No reason exists and none indeed has been advanced by the learned Assistant Advocate- General as to why these three material witnesses, who are all responsible Government servants, have not been examined so far in support of the prosecution case. This has, therefore, created a shadow of doubt in my mind as to the correctness of the prosecution case against the petitioner.
12. Additionally, the "Chit" regarding which the learned Assistant Advocate-General has made a repeated reference for about 10 times, during his arguments, is not available on record either on the judicial file or on the police file. This is the "Chit" vide which the under trial prisoner was let of from the jail. Since the said "Chit" is not traceable, therefore, it cannot be relied upon by the prosecution to substantiate its case.
13. Kh. Azhar Rashid, learned Assistant Advocate-General has, on the other hand, relied on the statements of the lower staff of the jail recorded under section 164, Cr.P.C. Beside the statements of the undertrial prisoner/convicts who are confined in the jail and contended that from these statements a "prima facie" case is made out against the petitioner and resultantly he is not entitled to get bail.
14. I do not want to touch the merits of the case but I am of the opinion that it would be sufficient to remark here that the statements recorded under section 164, Cr.P.C. In this case, referred to above by the learned Assistant Advocate-General, cannot be relied upon safely as it is a matter of common knowledge that such-like statements can easily be obtained especially when the superintendent of the Jail is interested and the persons whose statements are recorded are confined in his jail and are, totally at his mercy.
15. Accordingly, without dilating upon the merits of the case, I am of the view that reasonable 'grounds do not exist for believing that the petitioner is connected with the commission of the offence charged with and that his case is that of further inquiry.
16. This bail petition is accepted. The petitioner shall be released forthwith, if not required in any other case provided he furnishes bail bonds in the sum of Rs,2,00,000 (Rs, two Ins) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar (Judicial) of this Court.
17. The Additional Registrar shall see that the sureties are respectable persons and hail from the settled areas of District Peshawar and have sufficient property in their names. The property documents as well as the copies of the identity cards of the sureties shall be obtained from them for record by the Additional Registrar of this Court.
18. Before parting with the case in hand I must bring it on record that the Investigating Officer in this case has been adding various sections of the P.P.C. Against the petitioner every other day. This procedure is not at all proper. The addition of various sections shall be looked into by the Superintendent of Police, Mardan immediately. A copy of this judgment shall be sent to him by my Private Secretary.