' MALIK HAMID SAEED, J.--- Sher Bahadar, son of Sardar Ali Khan, petitioner/complainant of Case F.I.R. No,192 registered at Police Station Mandan Bannu on 11-8-1997 under section 302/34, P.P.C., through the instant application filed under section 497(5), Cr.P.C. Read with section 561-A thereof, seeks the cancellation of bail granted to Haji Ghaffar Ali Khan, accused/respondent herein, by the learned Special Judge, Bannu on 30-10-1997.
2. It was on 11-8-1997 at 21-30 hours that the complainant/petitioner lodged a report before the police to the effect that on the eventful day and time his brothers named Daraz Khan and Ajmal Khan were busy in irrigating their lands outside their house, while he and his another brother named Ayub Khan were present inside the house when he heard report of fire-shots. No sooner the complainant and his brother Ayub Khan started to go out of the house when meanwhile Ghaffar Ali and Ghazi Marjan duly armed with Kalashnikovs entered their house and opened firing at his brother Ayub Khan with which he was hit and expired after a while. Both the accused decamped thereafter. Motive for the offence was stated to be that the accused had kidnapped his brother Ajmal Khan alongwith a detsun but the matter was not reported to the police. Thereafter, there had taken place an altercation between the complainant and accused parties due to which the accused were annoyed. After his arrest, the accused/respondent has been enlarged on bail while his co-accused is still at large.
3. We have considered the arguments advanced at the Bar and scanned the record of the case with the valuable assistance of the learned counsel for the parties.
4. The ground which prevailed with the Court below in admitting the accused/respondent to hail was that according to the medical evidence the deceased had sustained only one injury while two persons are charged therefor and hence, it was not certain as to which of the shots had proved effective. We are, however, not impressed by the said plea of the Court below, because the accused/respondent along with his co-accused has been specifically charged with the firing on the deceased in the F.I.R. As also in statements of the witnesses recorded under sections 161 and 164, Cr.P.C. The mere fact that the allegations were general in nature and no specific injury sustained by the victim was assigned to the accused/respondent would not make the case against him one of further inquiry. Both the accused had allegedly fired shots from their Kalashnikovs at the deceased as a result whereof he was injured and died and at this stage it was wholly immaterial as to whose shot had proved fatal. Be that as it may that two persons are charged for a solitary wound on the person of the deceased, but on tentative assessment of the materials so far brought on record, reasonable grounds do exist for believing that the accused/respondent had committed a non-boilable offence entailing punishment up to death or imprisonment for life. The reason given by the Court below in allowing bail to the accused/respondent required deeper appreciation of evidence which was neither convincing nor sufficient for releasing the accused/respondent on bail in a murder case. An accused would only be entitled to the discretionary relief of bail when on the tentative assessment of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-boilable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect, the Court is debarred to hold that the case is of further inquiry entitling the accused to bail. In the case in hand as well, the accused/respondent is directly charged for committing the crime and the charge duly gets support from the statements of the witnesses. In such circumstances, he was not entitled to the discretionary relief of bail which must be exercised judiciously and according to the well- settled principles of law for bail. Reliance in this respect can be placed on the case reported as Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCM R 1765.
5. The case reported in 1997 SCM R 251 and relied upon by the learned counsel for the accused/respondent is distinguishable from the facts and circumstances of the instant case, as it pertained to a cross-version while the present one is of an independent nature. Besides, the inquiry proceedings conducted by RDEO seems to be concocted.
6. We are, therefore, inclined to hold that the accused/respondent was not entitled to the concession of bail and the Court below has not judiciously and according to the well-settled principles of law for bail exercised its discretion in admitting him to bail in the case.
7. In consequence, we accept this bail cancellation application and recall the bail allowed to the accused/respondent per the impugned order, dated 30-10-1997 of the learned Special Judge, Bannu.