2010 PLP 1930 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

The accused petitioner herein has filed the instant petition to seek his release on bail in case F.I.R. No.1147 dated 12-12-2009 Police Station Swabi registered under sections 319/322 P.P.C. read with sections 3/4 Aerial Firing Act after refusal of concession of bail from the lower forums.

2. Learned counsel for the petitioner contended that it was a case of `Qatl-i-Khata' as the accused petitioner while participating in a marriage ceremony allegedly fired in the air and resultantly the deceased fell victim who too was present in the marriage ceremony. He further contended that later on the widow of the deceased and the complainant recorded their statements under section 164, Cr.P.C. on 16-12-2009 and section 322, P.P.C. was then added against the accused petitioner. He further submitted that no doubt accidentally a person lost his life but there was no intention of the accused petitioner to cause the death of the deceased and similarly there is nothing on the record in this regard which could prima facie reflect such intention of the petitioner.

3. On the other hand, learned counsel for the complainant contended that it was a preplanned and intentional murder for which motive, as given by the widow of the deceased was there. So, the accused petitioner directly charged in the case' is not entitled to any concession of bail. He further submitted that the accused petitioner did not surrender before the Court of law and remained absconder for a considerable time and the factum of mere abscondence would disentitle him for such concession.

4. Mr. Gul Daraz Khan, learned State counsel supported the version given by the accused petitioner who frankly conceded that there is nothing on the record which could suggest that it was an intentional act of the accused petitioner to cause the death of the deceased.

5. Learned counsel for the parties were heard and record of the case was perused which reveals that the accused petitioner has been charged for aerial firing in a marriage ceremony wherein he along with the deceased and many others were present in musical concert and the deceased fell victim to the aerial firing of accused. Resultantly a case under section 319, P.P.C. read with sections 3/4 of Aerial Firing Act (sic) was registered against the accused petitioner. Later on the complainant along with widow of the deceased recorded their statements under section 164, Cr.P.C. on 16-12-2009 and charged the accused on the ground that it was an intentional murder as there was a motive behind the same.

6. The contention of the learned counsel for the complainant that death of the deceased was the result of intentional act of the accused would find no support from the record of the case. The punishment provided for the offence under section 322, P.P.C. is only `Diyat' and under section 319, P.P.C., in addition to `Diyat', punishment as ta'azir is five years imprisonment. The law on the point is silent as to whether the punishment of `Diyat' would fall under the prohibitory clause of section 497, Cr.P.C. or not. At this stage of the case, without entering into the deep merits of the case, one cannot be kept in jail for a matter which still requires further probe as to whether it was an offence of `Qatl-i-Khata'/'Qatl-bis-sabab' or an intentional act of the accused. In this view of the matter, this Court is of the view that accused charged in such like situation would be entitled to the concession of bail under section 497 (2) Cr.P.C. on the point of further inquiry. Reliance in this regard can well be placed on Yousaf Khan v. The State (2000 PCr.LJ 203), Syed Asif Mateen Zaidi and 3 others v. The State (2008 PCr.LJ 125) and Fayyaz Ali Khan v. The State (2007 Cr.LJ 160).

7. So the instant petition is accepted and the accused petitioner is directed to be released on bail on furnishing bail bonds in the sum of Rs.400,000 (Rupees four lacs) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/Magistrate on Duty. The sureties must be reliable and men of means. H.B.T./128/P Bail granted.