' By this order, I propose to dispose of Cr. M.B.C. No.39 of 2004 which has been filed by Faizullah Khan alias Tiwana, complainant under section 497(5), Cr.P.C. For cancellation of bail granted to respondents Muhammad Amir and Najibullah by learned Additional Sessions Judge, Lakki Marwat vide order dated 26-1-:2004 .
2. Briefly narrated the facts leading to the filing of instant application are that on 16-9-2003 at 1230 hours complainant made a report at Police Station, Naurang to the effect that on the said day at 1200 hours, complainant alongwith his son Farmanullah (deceased), Sanaullah son of Maazullah and Sahib Dirt son of Shamsuddin was present in the street Mamtal Abad when in the meanwhile two police officials namely I.H.C., Muhammad Amir and F.C. Najibullah came there. They caught hold of Farmanullah, caused him fell on the ground and started beating him with kicks and blows and Kalashnikov butts. Later on, they roped a `Chaddar' around the neck of Farmanullah and dragged him to some distance. After accomplishing the mission, the accused bolted away on motorcycle. When the complainant reached near Farmanullah, he found him dead, Sanaullah and Sahib Din were stated to have witnessed the occurrence. Motive leading to the occurrence was stated to be exchange of harsh words between the deceased and the accused. Resultantly, a case was registered vide F.I.R. No.233 dated 16-9-2003 at Police Station, Naurang under section 302/34, P.P.C.
3. Mr. Muhammad Farid Khan, Advocate for. The petitioner bitterly criticized the impugned order and attempted to argue that the learned lower Court had no justifiable reason to hold that case of the respondents is of further inquiry within the purview of subsection (2) of section 497, Cr.P.C. And that they are entitled for the grant of bail. He added that the learned lower Court proceeded on wrong premises to hold that the medical evidence runs contrary to the prosecution story. He further submitted that contradictory version in medical evidence and ocular account of occurrence cannot be appraised in depth at bail stage. Further contention of the learned counsel is that the lower Court while granting bail to the respondents did not apply its mind to the facts of the case totally ignoring that respondents stand directly nominated in the promptly lodged report for the commission of offence and no case for grant of bail was made out.
5. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Sultan Shehryar Khan Marwat, Advocate for the respondents on the strength of two cases reported in Allah Nawaz v. The State and another 2004 SCMR 1175 and Muzaffar Iqbal v.
Muhammad Imran Aziz and others 2004 SCMR 231, supported the impugned order and maintained that in view of the variation in the medical evidence and the ocular account of the occurrence furnished by the complainant, learned lower Court had valid reasons to release the respondents on bail through the impugned order and no legitimate exception can be taken to it. My attention was invited to the reports of Dr. Muhammad Arif Khan and Bacteriologist, Health Department, Punjab.
6. The consideration for the grant of bail and cancellation thereof are different. Section 497(1), Cr.P.C. Lays prohibition for the grant of bail for offences entailing punishment of death or imprisonment for life or for ten years whereas subsection (5) of the said section has not imposed any such conditiofiality for cancelling the bail and any bail granting order which appears to be injudicious or perverse to the High Court or the Court of Session, as the case may be, can be recalled by it as held in Mirbaz Khan v. The State PLD 1991 Peshawar 63.
7. No doubt it is true that once a bail is granted to an accused by a Court of competent jurisdiction, the same cannot be rejected unless the discretion exercised by the Court granting bail is perverse, capricious or arbitrary. In the instant case, bail has been granted to respondents mainly on the ground 'that contention of complainant in F.I.R. Is not fully supported by the medical report, therefore, the case needs further inquiry as to whether the death has occurred due to epileptic fits attack or respondents are responsible for the murder of the deceased'. I feel that the learned Additional Sessions Judge has erred in law by allowing bail to the respondents. Contradictory version in medical evidence and the ocular account of the occurrence is a factor which cannot be appreciated in depth at bail stage. Alleged conflict in the ocular account and the medical evidence could be given weight by the trial Court after recording the evidence.
8. As noted above, the respondents have been mentioned in the F.I.R. With clear role in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this is not a case of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. For admission of the respondents to bail. They are the accused in a capital charge.
9. Ordinarily, bail should not be allowed in murder cases especially when the allegations in the F.I.R., if left unrebutted, would render applicant to sentence of death or life imprisonment. While granting bail to the respondents, trial Court acted illegally and in violation of the settled principles for the grant of bail. After recording evidence, it is the trial Court to give weight to the prosecution evidence.
10. For the above reasons, I accept this petition and cancel the bail granted to the respondents through the impugned order. The accused are present in Court. They are and sent to jail to face taken into custody trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.