2017 PLP 120 (YLRN)

ISHTIAQ IBRAHIM, J.

Sherin son of Hussain Khan invokes the jurisdiction of this court under section 497 of Criminal procedure for his enlargement on bail in case registered at Police Staten Tajori (Lakki Marwat) under sections 302/324/148/149, P.P.C. vide FIR No. 166 dated 26/5/2010.

2. Petitioner's prayer for his release on bail was turned down by Learned Additional Sessions Judge-II, Lakki Marwat through order dated 20-10-2016.

3. Facts of the case are that complainant Masoodur-Rehman brought the dead body of his uncle Lal Shah to Police station. Reported the matter to the effect that on the eventful day at 6:45 A.M he along with deceased Lal Shah were proceeding to Tajori. Deceased was ahead of him, they spotted accused/petitioner Sharin along with five others who were duly equipped with Kalashnikovs except co-accused Hasham in compliance of whose command, co-accused Zarkeem Khan fired at deceased, as a result of which he was hit and died on the spot, while petitioner with others fired at complainant ineffectively.

4. I have heard learned counsel for petitioner as well as Additional Advocate General on behalf of State and have scanned the record through their valuable assistance.

5. Admittedly petitioner is charged for ineffective firing at complainant in furtherance of common object. Question of complicity of petitioner qua his acting in furtherance of common object with rest of his co-accused requires recording of evidence, but till then refusal of bail in view of the peculiar facts and circumstances of the case would not be a step justified in law.

6. Cases wherein ineffective role of firing is attributed, falls within the scope of further inquiry due to the reason that question as to whether accused intentionally fired at the complainant or deceased, in furtherance of common object/common intention but was unsuccessful to hit or the case has been padded by attributing ineffective firing by the opposite party, could be answered after recording of evidence. Reliance can be placed on cases titled "Muhammad v. The State"(1998 SCMR 454), "Haji Muhammad Banaras v. Muhammad Ayaz and others (2000 SCMR 1360) and "Rab Nawaz v. The State" (1990 SCMR 1085).

7. Bail was refused to the petitioner mainly on the ground of abscondence when otherwise case comes within the ambit of section 497(2), Cr.P.C, then abscondence would not be a bar for grant of bail. In this reliance can be placed on cases titled "The State v. Malik Mukhtar Ahmad Awan" (1991 SCMR 322) and "Mitho Pitafi v. The State" ( 2009 SCMR 299).

8. In such view of the present case, petitioner deserves to be released on bail for the afore-stated reasons. This bail application is accepted and the accused/petitioner is released on bail provided he furnishes bail bond in sum of Rs:1,00,000/- (rupees One lac) with two sureties each in the like amount to the satisfaction of Illaqa /Judicial Magistrate.

9. These are the detail reasons of my short order of even date.

10. The observations made in this order are tentative in nature and shall not prejudice the mind of the trial court at the time of trial of the case who shall decide the case on merits and strictly in accordingly with law. WA/372/P Bail granted.