2004 PLP 2000 (MLD)

Khan Bahadur and his sons Ahmad Ali, petitioner, and Hussain Khan (absconding co-accused) stand involved in case F.I.R. No.347 dated 6-9-2003 registered under section 324/34, P.P.C. At the instance of injured Sher Alam, complainant. The petitioner has been refused the concession of bail by the forums below vide order dated 25-9-2003 and 11-3-2004 respectively. He has approached this Court with a similar prayer.

2. The petitioner and Hussain Khan are charged for having on 6-9-2003 at 10-00 hours at the instigation of Khan Bahadur fired at the complainant party resulting into injury to the complainant.

3. Arguing on behalf of the petitioner, Mr. Gauhar Zaman Khan Kundi, Advocate contended, inter alia, that the version of prosecution/complainant as given in the F.I.R. Is not in tune with Medico-legal report; that statements of witnesses are also not in harmony with the site-plan; that two persons have been charged for a solitary injury and it is yet to be determined at trial as to whom out of the two, is responsible for it; that no recovery has been effected in the present case; that co-accused Khan Bahadur has been released on bail by the Court of competent jurisdiction; that the so-called motive alleged in the F.I.R. Does not appeal to reason and that the so-called reason which figures in order dated 11-3-2004 of learned Sessions Judge, Lakki, cannot legally be made ground for refusal of bail, when the entire case of prosecution appears to be an attempt at concoction and fabrication. In support of the contentions, he placed reliance on Dilawar Khan v. The State and another (2004 YLR 431 Peshawar), Ansar Shah v. The State (2004 YLR 2262 Lahore) and Abdul Ghaffar v. The State (2004 YLR 2361).

4. Mr. Muhammad Sharif Chaudhry, learned Deputy Advocate-General for the State assisted by Mr. Muhammad Yagoob Khan Marwat, Advocate for the complainant opposed the bail application and maintained that petitioner's active participation in the occurrence being sufficiently spelt out, he does not deserve the grant of bail in this case which undoubtedly falls within the prohibitory clause of section 497, Cr.P.C. Reliance was placed on Safirullah v. The State and another (2003 PCr.LJ 1691 Peshawar), Mst. Parveen Akhtar v. The State and others (2002 SCMR 1836) and Waheed Murad v. Ajmal Khan and another (2000 PCr.LJ 1951 Peshawar).

5. An accused would only be entitled to the discretionary relief of bail when on the tentative assessment of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect the Court is A debarred to hold that the case is of further inquiry entitling the accused to bail within the meanings of section 497(2), Cr.P.C. No doubt the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively.

6. In the instant case, the petitioner is one of the accused persons directly nominated in the report for the commission of offence. A specific role of firing has been attributed to him which resulted in injury to the complainant. In view of the precarious condition and nature of injury, the complainant was referred to Peshawar and he is stated to have remained in the hospital for more than six months. So far as the question regarding grant of bail to co-accused Khan Bahadur is concerned, it may be noted that a proverbial role of Lalkara has been attributed to him B whereas the petitioner is charged for effective firing. The role of the petitioner is as such distinguishable qua the role assigned to co-accused. Therefore, the principle of consistency is not attracted in the case. At this stage, the petitioner is prima facie associated with the crime. The bail application fails which is hereby dismissed.

7. Needless to add here that any observation made in the present order shall not prejudice the learned trial Court and treated as tentative in nature. H.B.T./214/P Application dismissed.