' Mst. Rehmat Jan complainant, mother of lqbal alias Halaku deceased feeling aggrieved of order, dated 6-5-2000 passed by learned Sessions Judge. Abbottabad in case F.I.R. No,50, dated 18-2- 2000 under section 302/34, P.P.C., Police Station City Abbottabad whereby an interim to lqbal son of Shah Zaman, accused-respondent, was confirmed, has moved this application under subsection
(5) of section 497, Cr.P.C. Seeking recall of the aforesaid order.
2. Mst. Parveen daughter of Shah Zaman, resident of Madni Muhallah Upper Malikpura, Abbottabad was married to the deceased Iqbal and the couple lived together amicably for sometime.
Subsequently, differences arose between the couple and they drifted apart. The matter took an ugly shape when Mst. Parveen left the house of her husband on account of strained relations and started living in the house of her brothers lqbal accused-respondent and Farooq.
3. The prosecution story in brief is that on the day of occurrence, i.e, 18-2-2000 at about 18-45 hours lqbal deceased went to the house of the accused-respondent to bring back his wife. The deceased from the roof top of the house of one Jehandad asked his wife to come back and join him. In the meanwhile lqbal accused-respondent armed with .30 bore pistol accompanied by his brother Farooq came out of the house and started hurling abuses on the deceased. Rashid, his son Naveed and Iftikhar son of Farooq also arrived there in the meanwhile. Iqbal accused-respondent tired at the victim with which he was hit on different parts of his body. The matter was reported to the police the same day at 19-00 hours by injured Iqbal.
4. After registration of the case accused-respondent and his accomplices were arrested. They were enlarged on bail by Judicial Magistrate, Abbottabad by order, dated 3-4-2000 on the basis of compromise.
5. Initially the case was registered under section 324, P.P.C. But after the death of the injured on 10- 4-2000 the section of law was altered to that of section 302, P.P.C.
6. Apprehending arrest the accused-respondent and his co-accused made an application in the Court of learned Sessions Judge, Abbottabad for grant of ad interim bail. The request was granted and an ad interim bail was allowed which was subsequently confirmed through order, dated 6-5- 2000 on the basis of a compromise. The confirmation of bail of the accused-respondent has caused annoyance to the complainant who has approached this Court for cancellation of bail.
7. Mr. Muhammad Akbar Khan Swati, Advocate appeared on behalf of the complainant whereas Messrs Abdullah Jan Mirza and Mushtaq Tahir Kheli, Advocate represented the accused- respondent. Mr. Mazhar Akram, Advocate appeared for the State.
8. Criticising the impugned order, learned counsel for the complainant contended that the learned Sessions Judge had no justifiable reason to confirm anticipatory bail of the accused-respondent on the basis of a compromise which was defective and incomplete. Admittedly, it was urged that there was sufficient material on the file to connect the accused-respondent with the guilt and as such the extraordinary concession of pre-arrest bail should not have been extended to -the accused-respondent. The learned counsel added that the compromise arrived at between the parties was only to the extent of granting bail under section 324, P.P.C. And not under section 302, P.P.C. Elaborating the arguments the learned counsel submitted that the statements made by Taj Muhammad, Mst. Parveen and injured Iqbal, were before Judicial Magistrate, Abbottabad regarding compromise arrived at in a case under section 324, P.P.C. And were not before the trial Court regarding compromise under section 302, P.P.C. And thus, the compromise should not have influenced the mind of learned Sessions Judge in confirming pre-arrest bail of the accused- respondent. The learned counsel placed reliance on three cases reported in 1995 MLD 563 (Peshawar), 1999 MLD 581 (Lahore) and 1997 SCMR 1307.
9. Learned counsel for the State, in reply to the arguments addressed on behalf of the complainant placed reliance on two cases reported in PLD 1983 SC 82 and PLD 1999 Pesh. 14 and contended that the learned Sessions Judge was quite justified to confirm the pre-arrest bail of the accused- respondent on the basis of a compromise and a compromise once effected, cannot be withdrawn and it is incompetent for any person, once having entered into a valid compromise to withdraw from the same. Learned-counsel for the accused-respondent also adopted the arguments of the learned State Counsel and prayed for sustenance of the impugned order.
10. In the instant case, as stated above, the compromise was effected in case under section 324, P.P.C. And not in case under section 302, thereof.
This fact appears to have escaped notice of the learned Sessions Judge. Here he has proceeded on wrong premises in confirming ad interim bail of the accused-respondent notwithstanding the fact that the compromise under reference arrived at between the parties during the lifetime of the deceased was only to the extent of allowing bail under section 324, P.P.C. And not under section 302, P.P.C. There is nothing on record to show that the death of Iqbal was due to some other cause but was the result of injuries caused by firing of accused-respondent. The learned Sessions Judge has relied upon the case reported in 1995 MLD 563 (Peshawar). The ruling relied upon is distinguishable and speaks of the different situation. In the above referred case the complainant compromised with the accused party and later on resiled from the same and complainant was alive till the conclusion of the case and the nature of the case had not changed, as happened in the instant case.
11. As the compromise arrived at between the parties, was only to the extent of allowing bail under section 324, P.P.C. And not under section 302, P.P.C. And the bail application was opposed by the learned counsel, I find that the impugned order based on the so-called compromise alone, is patently illegal and unwarranted. The application is accepted and the impugned order is recalled.
The accused-respondent is directed to be taken into custody and sent to judicial lock-up to await his trial as an under-trial prisoner.
Bail cancelled.