1994SCMR393 (PLP)

Raja Abdul Ghafoor, Advocate on‑Record/Advocate Supreme Court for Petitioner. Mian Shakirullah Jan, Additional Attorney‑General for the State. Date of hearing: 20th October, 1993. FAZAL ILAHI KHAN, J: ‑‑Leave is prayed for in this petition against the judgment of Peshawar High Court, Circuit Bench, Abbottabad dated 7‑7-1993 passed in Criminal Miscellaneous No.81 of 1993.

2. The F.I.R‑cum‑Dying Declaration in this case lodged by ShAh7ada deceased son of Muhammad Aziz was reduced into a Murasila by Fida Hussain A.S.I. while he was on `gasht' duty. It was stated that a day earlier there had been a petty dispute between the injured and Rashid accused which was patched up. That on the morning of the occurrence Ijazul Haq brother of the injured was abused by Rashid accused who made a complaint to his father. A second Jirga was arranged at the residence of Mumtaz Anwar P.W. and the matter was again compromised. When the injured alongwith his father and the Jirga members were going back, at some distance from the house of Mumtaz Anwar, accused‑petitioner Shahid alongwith Rashid his co‑accused were standing on their way. Shahid accused caught hold of the deceased while Rashid his co‑accused gave him `Chhuri' blows and injured him on his abdomen and right hand. Munsif father of the accused‑petitioner also gave kicks and firsts blows to the injured. The injured succumbed to his injuries on 8‑11‑1992. With regard to motive it was stated that Fida Hussain brother of the complainant had abducted the cousin of the accused and case against him was registered on 7‑11‑1992.

3. Bail application moved by all the three accused made before the Illaqa Magistrate was rejected in respect of the petitioner and his co‑accused Rashid while bail was allowed to Munsif accused vide order dated 6‑12‑1992. The application made by the petitioner and Rashid his co‑accused was declined by Sessions Judge on 21‑1‑1993 and their further application dismissed by the High Court on 7‑7‑1993, against which the present petition has been moved by Shahid accused.

4. It was contended by the learned counsel that the petitioner has been attributed the role of his having caught hold of the deceased when his co -accused was inflicting the dagger blows and similar role was attributed to Munsif their father for having given kicks and fists belows to the deceased. The latter having been extended the concession of bail, on the principle of consistency, petitioner is also entitled to the grant of bail. That in view of the statements of the prosecution witnesses during the investigation it is to be determined whether petitioner facilitated the commission of the offence for application of section 34 makes out a case for further enquiry. We consider that there is substance in the above contentions, therefore, we convert this petition into appeal and allow the same. The appellant should be released on bail on furnishing bail bonds in the sum of Rs.25,000 (Twenty‑five thousand) with two sureties each in the like amount to the satisfaction of the Illaqa Magistrate. N.H.Q./S‑787/S Bail granted.