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Criminal Miscellaneous No. 1825/B of 1986, decided on 8th October 1986.

---S. 497(5)--Penal Code (XLV of 1860), S.302/34/109--Bail, cancellation of--Exercise of discretion in granting bail is to be judicious--Three persons were alleged in F.I.R. to have fired at deceased- Two found innocent by police--Accused allowed bail by Trial Court on ground of non-production of any independent witness, alibi of two assailants accepted by police and case calling for further inquiry--F. I. R. mentioning name of accused--Accused specifically attributed fire hitting deceased on face and neck--Police finding accused solely responsible for commission of offence--Reasonable grounds, held, existed to show accused liable for offence imputed to him--Release on bail was improper and arbitrary exercise of discretion in circumstances--Bail cancelled.

Shah Ahmad Khan Baloch for Petitioner.

Q.M. Saleem for Respondent No. 1.

Yasin Qazi for the State.

This is a petition under section 497(5), Cr. P.C. by Muhammad Ashraf Khan, petitioner, for the cancellation of bail granted to Mumtaz Ullah Khan, respondent, by an Additional Sessions Judge of Bhakkar on 14-6-1986.

2. The prosecution case in brief is that on 4-1-1986 at about 10-30 a.m. when Fateh Khan, deceased, alongwith Muhammad Ashraf Khan, complainant, Dost Muhammad Khan and Rab Nawaz Khan P.Ws., was returning to his home after having attended the Court of a 1st Class Magistrate at Bhakkar, Fateh Khan, deceased, was little ahead of the other witnesses. When the party was near a Petrol Pump on Jhang Road, they were surprised by Mumtaz Ullah Khan, respondent, and Saif Ullah Khan and Imtiaz Ullah Khan, co-accused, who were all armed with .12 bore carbines. Saif Ullah Khan, co-accused, raised a Lalkara to the effect that Fateh Khan, deceased. should not escape, as he had murdered their father. Pursuant to the Lalkara, Saif Ullah Khan, co-accused. fired at Fateh Khan, deceased, which shot hit his from chest, near the left shoulder. Mumtaz Ullah Khan, respondent, then fired, which shot hit the deceased on his face and neck. Thereafter, Imtiaz Ullah Khan, co-accused, fired a shot, which hit the deceased on his back, followed by Saif Ullah Khan, co-accused, who fired a shot, which hit the right flank of the deceased.

3. Bail was allowed to Mumtaz Ullah Khan, respondent, by a learned Additional Sessions Judge of Bhakkar on the ground that as no independent witnesses had been. produced and the alibi of two of the assailants, who were alleged to have used fire-arms, had been accepted by the police, the case of the respondent called for further inquiry.

4. Being aggrieved by the above order, Muhammad Ashraf Khan, petitioner, filed a petition for the cancellation of the bail of Mumtaz Ullah Khan, respondent, which is now before me for disposal.

5. On behalf of the petitioner it is mentioned that the F.I.R. clearly shows that Mumtaz Uliah Khan, respondent, fired at Fateh Khan, deceased, which shot hit his face and neck and that since the police has found him to be present at the spot and to have participated in the firing. The said respondent was not entitled to be released on bail.

6. On behalf of Mumtaz Ullah Khan, respondent, it is submitted that the witnesses cited in the F.I.R. all happened to be the relations of the deceased and that as the occurrence took place near a Petrol Pump on a well-frequented road, independent witnesses would have been present and should have been cited and since they have not been cited, it is stated that the story of the complainant is not true. It is further submitted that Saif Ullah Khan and Imtiaz Ullah Khan, co-accused who were also alleged to have fired a total of three shots on the deceased were held to be innocent during the police investigation, whim fact threw a cloud of doubt on the prosecution case. It is further submitted that though the complainant referred to four shots having been fired at the deceased, the post mortem examination report referred to five injuries and since two of the assailants who were alleged to have fired shots at the deceased which were fatal, have been found innocent, the case of the respondent, who is only alleged to have fired a shot which hit the deceased on his face and neck, which was not found to be fatal, appears to be cooked up and cannot be safely accepted. In the light of these circumstances, it is submitted that the exercise of discretion by the learned Additional Sessions Judge was Judicious and proper and this Court should not interfere.

7. Learned course: for the State supports the arguments of the learned counsel for the petitioner.

8. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner, the respondent and the State and have also perused the police record. The F.I.R. clearly mentions the name of Mumtaz Ullah Khan, respondent, as the person who fired one of the shots with his carbine at Fateh Khan, deceased, which hit hint on his face and neck. Whilst not unmindful of the fact that Saif Ullah Khan and Imtiaz Ullah Khan, co-accused, have been found innocent by the police during investigation they have found Mumtaz Ullah Khan, respondent, to be the sole accused responsible for the commission, of the offence. There are, therefore, reasonable grounds to show that he is liable for the offence imputed to him. His release on bail, therefore, was arbitrary and an improper exercise of discretion.

9. For the foregoing reasons, this petition is accepted and the bail granted to Mumtaz Ullah Khan, respondent, icy Additional. Sessions Judge of Bhakkar on 14-6-1986, is cancelled. He shall be taken into custody by the police.

S.A. Bail cancelled.

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