Mst.Riaz Bibi vs Muhammad Riaz etc

2014 P Cr. L J 475

[Peshawar]

Before Assadullah Khan Chamkani, J

Mst. RIAZ BIBI---Petitioner

Versus

MUHAMMAD RIAZ and 2 others---Respondents

Criminal Miscellaneous No.525 of 2011, decided on 4th February, 2013.

(a)Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S. 302/34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-e-amd, common intention, possession of illegal weapons---Application for cancellation of bail, dismissal of---Implication on basis of supplementary statement under S.164, Cr.P.C. recorded belatedly---Effect---Accused persons were alleged to have murdered the deceased---Occurrence took place at night and no one had been charged by the complainant in the F.I.R., despite the fact that complainant immediately inquired from the deceased about his injuries before he died---Brother of deceased charged the accused persons in his statement under S.164, Cr.P.C., about 3-1/2 months after the occurrence without disclosing his source of information---Complainant alleged that she saw a (single) unknown person in the house at the time of the occurrence, whereas brother of deceased had nominated present two accused persons in his statement under S.164, Cr.P.C.---Although weapon had been recovered allegedly at pointation of one of the accused but the Forensic Science Laboratory report was yet to be received---Petition for cancellation of bail was dismissed accordingly.

(b)Criminal Procedure Code (V of 1898)---

----S. 497(5)---Cancellation of bail---Scope---Once concession of bail was extended by a court of competent jurisdiction, in normal circumstances, the same was not to be interfered with unless the order was perverse or not tenable on the face of the record.

(c)Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 193(2)---Power of Sessions Judge to make over (entrust) a case to the Additional Sessions Judge---Scope---Sessions Judge entrusted a bail petition to Additional Sessions Judge, who allowed the same---Sessions Court commenced trial after submission of challan---Complainant moved petition for cancellation of bail on fresh grounds, which was kept by Sessions Judge and not entrusted to the Additional Sessions Judge---Plea of complainant that trial and bail cancellation petition ought to have been decided by the Additional Sessions Judge, who had dealt with the bail application of the accused---Validity---Criminal cases were made over (entrusted) to Court of Additional Sessions Judge by the Sessions Judge, within the meaning of S.193(2), Cr.P.C., and while entrusting the case, Sessions Judge was not supposed to entrust trial of case to an Additional Sessions Judge, who had either dealt with the bail or bail cancellation petition of accused---Retention of trial and bail cancellation petition on fresh grounds by the Sessions Judge was justified in circumstances---Petition was dismissed accordingly.

Mushtaq Ali Tahirkhel for Petitioner.

Qazi M. Arshid for official Respondents.

M. Nawaz Khan Swati???????????????? for Respondents.

Date of hearing: 4th February, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Mst. Riaz Bibi petitioner has filed this petition for cancellation of bail granted to respondents Nos.1 and 2 by learned Additional Sessions Judge-II, Haripur on 27-5-2011 in case F.I.R. No.558 dated 10-12-2010 under sections 302/34, P.P.C. and section 13 of the Arms Ordinance Police Station Saddar Haripur and petitioner moved an application for recall of their bail, on receipt of FSL report, which was entrusted to Additional Sessions Judge-III, Haripur whereas trial of the case was retained by the learned Sessions Judge himself. Learned counsel for petitioner raised an objection, which was overruled vide order dated 20-9-2011 and bail cancellation petition was turned down vide order dated 10-10-2011.

2.As per contents of F.I.R., complainant Mst. Riaz Bibi reported the matter to the local police that on the eventful night she along with her children were sleeping in the room while her deceased husband namely Muhammad Siddique was sleeping outside the room in the verandah. At about 9-30 p.m. a fireshot was made outside the room in the verandah, on which she rushed outside, the light was on at that time and she noticed a person retreating by means of stairs present in the verandah. She came back and inquired from her husband, who disclosed that he had sustained injuries as a result of firing made by some unknown person. Her husband succumbed to the injuries on the spot. The complainant did not point out enmity with anyone. The matter was reported in the shape of murasila, on the basis of which, the present

case against unknown accused was registered. Later on, Muhammad Fareed, brother of deceased Muhammad Siddique, recorded his statement under section 164, Cr.P.C. on 31-3-2011 and charged the accused respondents for the murder of deceased. Motive was stated as deposition of late Muhammad Siddique against the accused in a murder case.

3.Learned counsel for petitioner argued that brother of deceased, namely, Muhammad Fareed, on satisfaction, has charged the accused respondents in his statement under section 164, Cr.P.C. on 31-3-2011 for the murder of his deceased brother Muhammad Siddique and pistol recovered on pointation of Sajjad accused was sent to FSL for analysis and report was received in positive. It was argued that once the case was entrusted to a court then the trial of the case should be conducted by the same court but it has not been done in the instant case, which is apparently found against the law and principles of administration of justice. It was argued that since both the impugned orders are patently wrong and illegal, therefore, these are liable to be set aside.

4.On the other hand, learned counsel for accused respondents vehemently opposed the contentions of petitioner and supported the impugned orders whereas learned AAG supported the version of learned counsel for the petitioner regarding cancellation of bail of accused respondents, however, he also refuted the contentions of learned counsel for the petitioner raised in respect of assuming jurisdiction respecting trial of the main case.

5.Arguments heard and record perused.

6.In the instant case the occurrence took place at night and none has been charged by the complainant in his initial report despite the fact that she immediately enquired from her husband about the injuries allegedly sustained by him whereas Muhammad Fareed, brother of deceased Muhammad Siddique, after about 3-1/2 months charged the accused respondents for commission of crime but without disclosing the source of information. Further, according to the complainant, she has seen an accused and how the present two respondents have been nominated by the brother of deceased. The pistol allegedly recovered on the pointation of accused Sajjad and the FSL report is yet to be determined at the trial with the connectivity of accused Sajjad. In the light of said grounds respondent was granted bail by the lower Court. Further, it is well-settled principle that once the concession of bail is extended by the court of competent jurisdiction, in normal circumstances, the same is not interfered with unless the order is perverse or on the face of record not tenable. In absence of such grounds and finding no irregularity in the bail granting order, I do not feel inclined to recall the bail granted to respondent.

7.Later on, challan in the case when was put in Court and learned Sessions Judge commenced the trial, the petitioner has moved an application for recall of bail of accused respondents on a fresh ground. The learned counsel for petitioner raised objection regarding retaining of trial as well as bail cancellation application, as according to him the trial and bail cancellation application were ought to have been decided by the learned Additional Sessions Judge who had dealt with the bail application of accused, which after contest was ruled out by the trial Court. The accused have formally been charged and case is fixed for prosecution evidence. Criminal cases are made over for trial to the Courts of Additional Sessions Judge by the Sessions Judge, within the meaning of subsection (2) of section 193 of Criminal Procedure Code and while entrusting the cases to Additional Sessions Judge, the Sessions Judge is supposed to entrust trial of case to Additional Sessions Judge, who had either dealt with the bail or bail cancellation of accused. It pertains to the sole administration matter and in case of any

grievance the other side has the right to approach the higher forum for transfer of the case. So, the learned Sessions Judge was justified in retaining the trial of instant case as well as the bail cancellation application moved by the petitioner on fresh ground.

8.Resultantly, this petition being without merit is hereby dismissed.

MWA/67/P Petition dismissed.