Through the instant application, Nabi-ur-Reehman has sought cancellation of the bail granted to Aziz-ur-Rehman accused-respondent No.1 in case F.I.R. No.143, dated under sections 382/404/34, P.P.C. Police Station, Latamber, by the learned Sessions Judge, Karak vide his order dated 1-12-1998.
2. According to the F.I.R. Lodged by Nabi-ur-Rehman complainant on 14-10-1998 at 6.00 hours in the Police Station that he was driving his Datsun No.KTB-497, one passenger namely Sultan alias Malik was also sitting with him in the front seat, when they reached near Chowk Wilayat Khel at about 5.20 a.m. He stopped the vehicle on the signal of a passenger, in the meantime accused Aziz-ur- Rehman alongwith two other unknownpersons duly armed came there. The complainant and the passenger were forcibly got down from the Datsun and all the four accused took away his Datsun alongwith his licensed pistol which was lying on the front seat of the vehicle. The motive as stated in the F.I.R. Is that 8/9 months prior to the occurrence, son of the accused Azizur Rehman got injured by falling from the Datsun of the complainant and the accused was demanding compensation of Rs. 50,000 which was not paid, due to which he was hostile towards him.
3. Accused-respondent No.1 was granted ad interim pre-arrest bail on 19-10-1998 which was not confirmed and interim bail was recalled on 10-11-1998. After his arrest the accused-respondent applied for bail before the Judicial Magistrate, Karak which was dismissed by him vide his order dated 17-11-1998. He was allowed bail by the learned Sessions Judge, Karak vide his order dated 1- 12-1998, against which this cancellation application has been filed by the complainant.
4. I have heard the learned counsel for the parties and have perused the record of the case with their assistance.
5. The occurrence took place on 14-10-1998 for which accused---respondent was directly charged.
He obtained ad interim pre-arrest bail on 19-10-1998 which was recalled on 10-11-1998. After his arrest his bail application was rejected by the Judicial Magistrate, however, he was granted bail by the learned Sessions Judge, Karak on 1-12-1998 on the ground that neither the identification parade has been held regarding the companions of the accused-respondent nor recovery has been effected nor accused---respondent has confessed his guilt. As far identification of the co-accused is concerned they had not been arrested till 1-12-1998, therefore, it has no relevance with regard to the present accused as he was directly charged by name for the offence and there is sufficient material on the record in support of the motive alleged in the F.I.R. The accused-respondent after the occurrence remained in hiding for five days whereafter he obtained pre-arrest bail which was recalled on 10-11-1998, and was allowed post-arrest bail on 1-12-1998. Aqal Nawaz co-accused was arrested on 6-2-1999, who in his confessional statement admitted to have committed several offences including the lifting of the, Datsun. Muhammad Sultan alias Malik an eye-witness who was sitting as passenger with the complainant has totally supported the complainant's version, as such there is a prima facie case against the accused---respondent for the offence charged with.
6. About the phrase 'further inquiry' occurring in subsection (2) of section 497, Cr.P.C. The apex Court of the Country has laid down the law to cases of Muhammad Sadiq v. Sadiq and others and Ibrahim v. Hayat Gul and others (PLD 1985 Supreme Court 182 and 1985 SCM R 382 respectively, that section 497(2), Cr.P.C. Does not leave it to the discretion of the Court to withhold bail to a person accused of non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the Officer Incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable grounds for believing that the accused has committed a non-bailable offence.' Without such finding by such officer or the Court the accused would not be released on ground of further, inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision.
7. In this case there is no such finding either by the Officer Incharge of the Police Station or by the Court taking cognizance of the matter that there are no reasonable grounds for believing that the accused has committed a non-bailable offence hence discretion has not been exercised by the learned 8 Judge in a judicial manner.
H.B.T./309/P