2008 PLP 991 (MLD)

MUHAMMAD ALAM KHAN, J.

Petitioner Hazrat Khan son of Niaz Muhammad, resident of Garhi Abdul Samad Naguman, Peshawar, has submitted this bail application requesting for his release on bail in case F.I.R. No.765 dated 27-10-2007, charged under sections 381-A/411/148/149, P.P.C. read with section 13 A.O. Police Station, Pabbi, Tehsil and District Nowshera.

2. Briefly narrated the facts of the case are that Muhammad Ishaq Khan A.S.-I. was on routine mobile `gasht' on 27-10-2007, when a person, namely, Bakhtiar son of Nazir Muhammad, caste Afghan, resident of Islamabad Koroona Mian Gujar, Peshawar, met him and informed him that on College road some persons have snatched his car bearing No.B-4853 Mardan and fled away towards Nowshera. They were chased and when they saw that the mobile squad was chasing them, one of the accused, namely, Hazrat Khan son of Niaz Muhammad, the present petitioner, was arrested along with a pistol and on interrogation he disclosed the names of his companions Gulab, Tahir and Mukammil, residents of Mashokhel Badhber Peshawar and Shahid son of unknown person, resident of Azakhel Payan. They disclosed the car as bearing No.B-4853 Mardan, chassis No.SB-308 PK/6068 Model 1989 white in colour, which was taken into possession by the police and on recovery one .30 bore pistol along with five live cartridges was also recovered, which was taken into possession and the accused was arrested.

3. The accused-petitioner submitted an application to the learned Judicial Magistrate, namely, Adil Zaib Khan, who vide order, dated 5-12-2007 rejected the application of the petitioner. The petitioner then submitted an application for bail to the learned Sessions Judge, Nowhsera, which came for hearing before Ishfaq Taj, Additional Sessions Judge, Nowhsera and who after hearing the learned counsel for the parties and PP for the State and taking the data available on record came to the conclusion that a prima facie case exists against the accused-petitioner and thus, vide order, dated 18-12-2007 rejected the bail application of the petitioner.

4. Niaz Muhammad, father of the petitioner present in Court, submitted that the accused-petitioner who has been charged under sections 381-A/411/148/149, P.P.C. read with section 13 A.O., does not carry imprisonment for ten years and thus it does not come within prohibitory clause as contained in section 497, Cr.P.C. He further argued that the accused-petitioner has not been attributed any role in the commission of the offence and mere presence of the petitioner in the Motor Car without any specific role will not burden him with the liability as envisaged by above sections of law.

5. He further submitted that the accused-petitioner has effected compromise with the complainant and thus, prayed for release of the petitioner on bail.

6. I have given anxious consideration to the facts and circumstances of the case and have perused the data available on the record. As far as the question of compromise is concerned, the offences under which the petitioner has been charged are not compoundable and thus, the compromise cannot be a ground for bail in non-compoundable offences.

7. Without going into the merits of the case, suffice it to say that section 381-A, P.P.C. carries a maximum sentence of seven years while the punishment provided under section 13 A.O. also does not come within the prohibitory clause of section 497, Cr.P.C. In such like cases the grant of bail is a rule and refusal of the same is an exception to that rule. In view of the facts and circumstances of the case narrated above, the accused-petitioner is admitted to bail in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial/Duty Magistrate, Nowshera. H.B.T./46/P Bail granted.