' MALIK HAMID SAEED, J.--- Mst. Rubina and her minor daughter named Mst. Zarkesh have by this application filed under section 497(5), Cr.P.C. Sought the indulgence of this Court to recall the to Inam Khan, accused/respondent herein, by the learned Special Judge Bannu on 27-10-1997, in case F.I.R. No,328, dated 17-3-1992 registered at Police Station Bannu City under section 302, P.P.C.
2. The prosecution's case in brief is that on 17-3-1992 at 1735 hours,Iqtidar Khan son of Bahadur Khan, had lodged a report in injured condition in the Emergency Ward. Of District Headquarters Hospital Bannu to the effect that on the eventful day at 7-10 p.m. While coming out from the house of his father-in-law, namely, Wali Ayaz Khan, and reaching near Rashid Hotel in 'Chai' Bazar travelling Motorcar No,BUB-5085 and accompanied by his aunt's son named Tariq Mehmood son of Gul Ajab Khan, when Inam Khan son of Muhammad Yunis, accused/respondent herein, duly armed with .30 bore pistol emerged at the scene and opened fire at him, as a result whereof he sustained injuries on his right arm and chest. The accused/respondent, thereafter, decamped from the spot. Motive for the offence was stated to be a dispute over women-folk and the occurrence was alleged to have been witnessed by the aforesaid Tariq Mehmood. The injured/complainant, thereafter, succumbed to the injuries and his report was as such reduced into writing as a dying declaration in the shape of Murasila by the S.H.O. Nazif Shah in presence of two qualified doctors- on-duty. Initially the case was registered under section 324, P.P.C. But after the death of the injured, the section of law was altered to that of section 302, P.P.C. After committing the crime, the accused/respondent went into hiding and remained fugitive from law for about 5-1/2 years. It was on 25-9-1997 that the accused/respondent applied for bail-before-arrest which was granted to him by the learned Special Judge Bannu. Meanwhile, the accused succeeded in manoeuvering and while his bail before arrest application was fixed for confirmation or otherwise on 13-10-1997, he presented some of the legal heirs of the deceased Iqtidar Khan who recorded their joint statement about compromise, but two brothers of the deceased named Ghaffar Khan and Mustafa Khan were absent and, therefore, the Court observed in its order "that it appeared that the accused had not compromised the case with all the legal heirs of the deceased and as such, the pre-arrest to him was recalled on the same day.
3. Thereafter, the accused/respondent applied for post-arrest bail. Mst.Rubina, petitioner herein, had through Miscellaneous Petition No,9254 of 1997 also applied for her impleadment as a respondent in the bail petition of the accused/respondent, on the plea of her being legally wedded wife of the deceased Iqtidar Khan. Both the petitions were taken together and vide common order of the Court below, the impleadment prayer of the petitioner Rubina was turned down while bail was conditionally allowed to the accused/respondent on the ground of compromise alone per order, dated 27-10-1997 impugned herein, despite the fact that two real sisters of the deceased named Mst. Yasmin and Mst. Sufia were absent and were not consenting parties in writing and despite the fact that the consenting parties to the compromise though had named the petitioners to be the wife and daughter of the deceased which fact is mentioned in the impugned order, yet the accused/respondent was admitted to bail on account of an incomplete compromise.
4. It is astonishing to note that in spite of the fact that the accused/respondent was held not entitled to bail on merits being directly charged in the dying statement of the deceased and having remained fugitive from law for a sufficient unexplained period, still he was admitted to bail on account of a defective compromise as two sisters and the petitioners though mentioned by the compromising party to be the legal heirs of the deceased had not compromised the case with the accused. While rejecting the claim of the petitioners, it was observed that suit for restitution of conjugal rights between her and the accused was pending adjudication in Family Court at Bannu and after its decision in case of her success she would be at liberty to move for cancellation of bail allowed to the accused/respondent. Likewise, the two unassociated sisters of the deceased to the compromise proceedings were left entitled to file bail cancellation petition against the accused/respondent.
5. Learned counsel for the petitioner vehemently criticised the impugned bail order of the Court below and the learned counsel for the accused/respondent and State supported the same.
6. After giving our anxious considerations to the respective arguments advanced at the Bar and weighing the materials so far brought on record, we are of the considered views that this bail cancellation application merits acceptance. The accused/respondent has been admitted to bail on the ground of compromise alone. While passing the impugned order, the learned Special Judge has altogether overlooked all the materials available on record. A civil suit was pending adjudication wherein all the legal heirs of late Bahadur Khan, father of deceased Iqtidar Khan, were made party therein excluding the petitioners. It was on 16-9-1997 that on their request the petitioners were arrayed as a party therein by the learned Senior Civil Judge Bannu. The plaintiff had failed to challenge the said order, dated 16-9-1997 in appeal and, therefore, it had attained finality, terming the petitioners to be amongst the legal heirs of deceased Iqtidar Khan, as his wife and daughter respectively. Besides, the occurrence had taken place on 17-3-1992 while the petitioner had produced a Nikah Nama dated 7-12-1991, i,e, about three months and ten days before the incident which shows that Mst. Rubina was already in the wed-lock of the deceased Iqtidar Khan. Mst. Akhtar Begum, mother of the deceased Iqtidar, had died after the present occurrence and her inheritance mutation was attested in favour of her legal heirs including the petitioners. Another sale Mutation No,10055 attested on 24-1-1993 vide which inheritance mutation was attested in the name of the petitioners who had subsequently sold the property in question to Mustafa, Inamullah Khan, Ghaffar and Bahadur Sher, brothers of the deceased and this fact is/was available on record and entries to this effect had duly been made in the Revenue Record. In his report, the deceased had categorically stated that at the time of occurrence he had come out of the house of his father-in-law named Wali Ayaz and in her National Identity Card too, Mst. Rubina is mentioned to be the wife of Iqtidar Khan. Above all, the inheritance mutation of the deceased Iqtidar Khan was attested at the behest of his brother Bahadur Sher Khan wherein petitioner Rubina is duly mentioned as legal heirs of his brother deceased Iqtidar Khan. This fact further gets support from the 'Roznamcha Waqiati' wherein Mst. Rubina is mentioned as the wife of the deceased Iqtidar Khan. All the aforesaid facts proves that the petitioners are the true legal heirs of the deceased lqtidar Khan and they had been wrongly and illegally ignored in the compromise proceedings while passing the impugned order by the Court below. It was obligatory for the Court to have first determined positively as to whether the petitioners were on the basis of aforementioned materials brought on record or not the legal heirs of the deceased and thereafter, to have passed any order.
In this respect, reliance is placed on the case reported in PLD 1996 SC 178. Question of legitimacy can be proved by 'materials' instead of direct evidence of marriage and legitimacy. Islamic law leans in favour of legitimizations rather than stigmatization and it is almost wrong to resolve all doubts in favour of stigmatization and illegitimacy rather than legitimacy. In this respect, we are fortified to a case reported in NLR 1992 SC (Judgments) 508. This being the true picture of the case, the petitioners being the legal heirs of the deceased were required to have been made party to the compromise proceedings including the two remaining sisters of the deceased and in their absence, the compromise is defective and incomplete, rather it seems that the brothers of the deceased had compromised the case with the accused only to deprive the petitioners from the legacy of the deceased-husband/father. The impugned order of the Court below based on the so- called compromise alone is, therefore, patently illegal and unwarranted.
7. In consequence, we would set aside the impugned order and recall the to the accused/respondent. He is present in Court, taken into custody and sent to judicial lock-up to await his trial as an under trial prisoner. He is, however, at liberty to move on merits for bail afresh from the Court of Illaqa Magistrate, as at the time of passing of the order in question, .30 bore pistol was not included in the Scheduled offences and, therefore, post-arrest bail petition of the accused was not legally required to have been entertained by the Special Judge in a Sessions Case.
8. Before parting with the case, we may observe that when the aforesaid material facts were available on record which duly proves the petitioners to be the legal heirs of the deceased, the Judge below was not legally required to have made basis an incomplete and defective compromise for grant of bail in a murder case charging the accused/respondent by the deceased in his dying statement. By doing so some smell of illegal consideration comes out from his impugned order which is needed to be dig out. We, therefore, suggest a stern action against Mr. Abdul Sattar Khan Khattak who was then Special Judge Bannu by making an adverse entry in his A.C.R. A thorough judicial probe about his integrity should be conducted and he is required to be dealt with iron hands. Record of the case be sent back to the Court concerned forthwith.
Bail cancelled.