' This is a bail cancellation petition against the grant of pre-arrest bail to the accused respondent vide order, dated 6-2-2002 by the learned Additional Sessions Judge-I/Izafi Zilla Qazi in case F.I.R.
No,781, dated 25-12-2001 Tehsil Kabbal, District Swat for offences under sections 324/452/34, P.P.C.
Police Station Kabbal.
2. Briefly, the facts are that the petitioners made a report to Hakim Khan, A.S.-I. Inside the hospital alleging that he alongwith his brothers were present at about 21-00 hours inside his house when, in the meanwhile the accused respondent and his co-accused came there duly armed and started firing at them and from the fire shot of Abdul Qahar now accused respondent he sustained injury on the front part of his body while P.Ws. Escaped unhurt. A Murasila report was made the basis of F.I.R. (ibid). The record shows that the petitioner was referred to Hayat Abad Medical Complex and a plastic surgery was done and it is also evident from the medico-legal report that the petitioner/complainant has sustained numerous injuries including one on vital part of his body. The motive behind the crime is a property dispute. All the accused charged including the respondents, approached the learned Additional Sessions Judge-1/Izafi Zilla Qazi, Swat, namely, Mr. Muhammad Arshad Khan, whose order is now under consideration and he without any care and caution and not exercising the least restraints, allowed pre-arrest bail to the accused including the respondent notwithstanding the fact that the accused/respondent was charged for effective shot and that no distinction was drawn between the accused respondent herein and his co-accused.
3. The most shocking and perverse aspect of the order is that the learned trial Judge has not taken pain to adhere to the well defined principle of law on the subject of pre-arrest bail, which has been time and again firmly laid down by the apex Supreme Court wherein, it is, laid down that the foremost requirement for grant of pre-arrest bail to an accused is that he must satisfy the judicial conscience of the Court that the charge against him is due to ulterior motive and malicious and that the arrest is motivated by way of caprice and he would be disgraced if arrested on account of that charge. The learned Judge below failed to refer to this aspect of the case and granted pre- arrest bail mainly on the grounds of status and age of the accused. None of these grounds is recognized by the provisions of law on the subject of bail. These are only relevant circumstances; therefore, the impugned order is not in accordance with the well-defined principles so laid down.
4. The learned counsel appearing on behalf of the accused respondent, however, strenuously argued that the trial has commenced, formal charge has been framed and the case is fixed for prosecution evidence and that no useful purpose would be served if the accused respondent is arrested after cancellation of his pre-arrest bail. Further contended that the 5th accused Rehmat Khan is found to be the real culprit by the police and was arrested but he has also been released on bail and that the complainant has not come to this Court for the cancellation of bail granted to the co-accused and the 5th accused of the respondent subsequently arrested.
5. The record reveals that the occurrence has taken place in the dark hours of the night and the source of light was subsequently introduced as it is not mentioned in the F.I.R., the distance inter se between the parties is ranging from 15/16 paces, are questions require serious consideration. The introduction of 5th accused Rehmat Khan at a belated stage has changed the complexion of the case to some extent and that blood was also recovered from outside the house from a dump of fertilizer by the I.O. And that the parties are at logger-heads on a property dispute besides the record shows that complaints and cross-complaints have been made by the parties against each others before the local authorities levelling serious allegations of moral turpitude etc.
6. These materials available on record and the principle regulating the cancellation of bail which is altogether different, therefore, for the reasons which are different from the one given by the learned Additional Sessions Judge, it would be not appropriate to cancel the bail. It is stated that the trial has already commenced and the case is fixed for prosecution evidence, therefore, the bail granting order is maintained. However, the trial Court is directed to expedite the trial and if any evidence comes on record constituting reasonable grounds that the accused respondent is connected with the crime the learned trial Court would be at liberty to cancel the bail if moved by the complainant.
' Nothing observed and said in this order shall influence the mind of the learned trial Judge in any manner and at any stage whatsoever.
7. Resultantly the application is dismissed.