Bahadur Sher, petitioner, has filed this application for cancellation of bail granted to Mussadiq Sher, respondent No,1, by the learned Sessions Judge, Kohat vide impugned order, dated 10-9-1999 in case F.I.R. No,630, dated 28-11-1997 under section 302/34, P.P.C., Police Station, City Kohat.
2. Brief facts of the case are that accused-respondent Mussadiq Sher alongwith Jamal Parvez and Ahmad Nisar, accused, have been charged by Bahadur Sher, complainant for the murder of his father Muhammad Younas. According to the complainant, under the command of Jamal Parvez, his paternal-uncle with whom the deceased was having landed property dispute, the accused Ahmad Nisar and Mussadiq Sher started firing at his father Muhammad Younas with which he was hit and seriously injured. The deceased (then injured) was rushed to the hospital in a vehicle but he died of his injuries.
3. The accused-respondent was earlier granted pre-arrest bail by the learned Additional Session Judge V, Peshawar on 23-7-1998' alongwith his co-accused Jamal Parvez , against which the petitioner/complainant filed bail cancellation application in this Court, which application was rejected on 13-11-1998. The petitioner/complainant filed a petition in the august Supreme Court of Pakistan against the said orders and the august Supreme Court of Pakistan vide order, dated 17-5- 1999 cancelled the pre-arrest bail of Mussadiq Sher, respondent. After his arrest, the accused- respondent again moved the Court of the learned Sessions Judge, Kohat for grant of post-arrest bail and the learned Sessions Judge on 10-9-1999 granted bail to the accused-respondent, hence the present application by the complainant/petitioner for cancellation of bail.
4. I have heard the learned counsel for the parties and have also perused the record of the case.
5. The learned counsel for the petitioner argued that the pre-arrest bail of the accused-respondent has already been cancelled by the august Supreme Court of Pakistan on the ground that he was specifically named in the F.I.R. With a specific role in the commission of the crime and, therefore, the accused-respondent was not entitled to the extension of post-arrest bail concession; that the learned Sessions Judge has made deep appreciation of the evidence in his bail order which would likely affect the case of the prosecution at the trial and that the learned Sessions Judge has relied on the inquiry made by the Crime Circle in which the petitioner was neither called and, therefore, in presence of the material available on record, the findings of the inquiry were not binding on the Court.
6. It is well-established principle that the Courts decide the pre-arrest bail applications and post- arrest bail applications on two different standards. The petitioner after his arrest could move the Court of the learned Sessions Judge for grant of bail. The learned Sessions judge after making a tentative assessm ent of the material available on record has found the accused-respondent entitled to the extension of the benefit of reasonable doubt arising in the case of the prosecution against the accused-respondent. No doubt, the accused-respondent is charged by name in the F.I.R. With the specific role of firing, but except the version of complainant, at this stage, no other incriminating evidence is available to fully connect the accused-respondent with the commission of the offence. The other witnesses in the case have not specifically charged the accused- respondent. The mothers of the deceased P.W. Taj Begum and sister of the deceased P.W. Mst.
Aaliya, in her statement recorded under section 164, Cr.P.C. Have not charged the accused- respondent. Even the alleged Jirga Members, Who were present at the spot at the relevant time, such as Sardar Hussain, Malik Fida Muhammad, Asghar Hussain and others have also not charged the accused-respondent in their statements. Under the above circumstances, placing reliance by the learned Sessions Judge on the inquiry conducted by the Crimes Circle on the application of the mother of the deceased in which the accused-respondent has also been shown innocent, is not against any established principle of law in such-like cases as the opinion of the investigating agency can be considered at bail stage if it creates doubt about the participation of the accused in the commission of the offence. The learned counsel for the petitioner is, therefore, unable to point out any good ground for interference with the impugned bail order.
7. However, I find myself in agreement to some extent with the argument of the learned counsel for the petitioner that the learned Sessions Judge has deeply appreciated the evidence available on record, which may prejudice the case of the prosecution at the trial. I, therefore, deem it proper to observe that whatever has been said, observed or held by the learned Sessions Judge in the impugned bail granting order or even in this order is the result of tentative assessment of the material available on file for the purpose of bail and the same shall not at all influence the opinion of the learned trial Judge or the course of the trial in any manner whatsoever.
8. For the aforesaid reasons, this application is hereby dismissed. As the challan in the case is complete and ripe for submission to the Court, therefore, the prosecution is directed to forthwith put in challan against the accused in the competent Court for trial and the trial Court is also directed to conclude the trial in the case expeditiously.