2016 PLP 1 (YLRN)

S. 497 (2)

Penal Code (XLV of 1860), Ss. 302, 324, 452 & 34

Qatl-i-amd; attempt to commit qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint; common intention etc.

Bail, grant of

Further inquiry

Accused had been charged on the sole ground of mobile SIM data recovered from the deceased assailant and as the accused was in regular contact with the deceased assailant at the time of occurrence

Record showed that the hand written SMS attributed to the accused and the data of the SIM recovered from the spot owned by the deceased assailant did not tally with the CDR record

SIM record had not been scientifically downloaded, printed and tallied

Petitioner, after recording of the FIR, had charged the accused on basis of suspicion

No incriminating article had been recovered from possession of the accused or on his pointation

Complainant s contention that the other co-accused had already been refused the concession of bail was repelled, as the role of present accused and that of the co-accused was not at par

Case of present accused, therefore, fell within the ambit of further inquiry

Investigation of the case had already been completed and the accused was no more required to the police

Bail application was allowed accordingly. [Paras. 4, 5, 6, 7 and 8 of the judgment] Fawad Hussain and Talha Saeed for the State. JUDGMENT MUHAMMAD YOUNIS THAHEEM, J.

Having unsuccessful in obtaining bail from the two courts below the accused/ petitioner Sabir Shah, involved in case FIR No.366 dated 27.06.2014 under sections 302/324/452/34 P.P.C., Police Station Cantt: Kohat, has come to this Court, through counsel, for the same relief.

2. Brief facts of case, as per FIR are that on 27.06.2014, Injured complainant reported the matter to the effect that at 01.30 a.m. at night they were all sleeping in their home, but woke up on hearing of footsteps in the vacant area of his first floor of the house. Muhammad Ibrahim shouted as to who was there and at this shout one of the accused first threatened him to keep silent and when the deceased switched his light on. All the persons made firing upon him with firearms, due to which he got hit and died on the spot. The complainant and his mother started crying for his help. Accused also started firing at them. The complainant reported that one of the accused stuck him with butt of his pistol on his head, due to which he got injured and in response, he picked up his pistol from below his pillow and started firing upon the accused. The accused thus starting running back from the spot and fled away. In the meanwhile their neighbor also reached to the spot and they also witnessed the deadbody of one of the assailant, which was lying on the roof top. As per complainant he had made firing upon accused persons but he did not know that the deceased accused was hit from his firing or from firing from his co-accused. On the same day the other two persons namely Usman and Aslam were also arrested in injured condition, who during interrogation verified the presence of deceased Umer and their role in the reported occurrence. One mobile set was found by the local police from the place of occurrence owned by the deceased assailant Umer and on search of its SIM data it was found that the deceased assailant Umer had made regular conversation with the accused/ petitioner Sabir Shah at the time of occurrence, due to which he was also implicated in the instant case later on.

3. Arguments heard and record perused.

4. Perusal of the record reveals that the accused/ petitioner is charged in the instant case on the sole ground of SIM data recovered from deceased assailant Umer and as the accused/petitioner was in regular contact with deceased Umer at the time of occurrence. Perusal of the record shows that the hand written SMS attributed to the petitioner and the data of SIM recovered from the spot owned by deceased assailant Umer, does not tally with the CDR record.

5. Further the complainant has not charged the accused/petitioner in his first information report rather has been charged on suspicion, nor the SMS record was scientifically downloaded, kprinted and tallied. Moreover, petitioner has been charged after unexplained delay and no incriminating article recovered from his possession or on his pointation, hence, the case of accused/ petitioner falls within the ambit of further inquiry within the meaning of section 497(2), Cr.P.C.

6. The contention of learned counsel for complainant that bail of two accused has been ralready efused, hence, the present accused/ petitioner is also not entitled for the same concession. Suffice it to say that the role of present accused/petitioner and that of co-accused is not at par with, hence, the contention of complainant is repelled.

7. Moreover, as is evident from the record, in the present case the investigation is complete, the case is ready for trial and as such the accused/petitioner is no longer required to the local police for further interrogation of the case, therefore, no useful purpose would be served by keeping him behind the bars.

8. In view of above, there is a wide scope of further inquiry into the guilt of accused/petitioner Sabir Shah, resultantly, he is admitted to bail on furnishing bail bonds, amounting to Rs. 300000/- (three lacs) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate/MOD. The sureties must be local, reliable and men of means. SL/127/P Bail allowed.