2002 P Cr (PLP)

IJAZ-UL-HASSAN, J.

The petitioners and 8 others are involved in case F.I.R. No.226 registered at Police Station Mirpur on 28-5-2001 at the instance of Javed Sultan complainant under sections 302/324/148/149/109, P.P.C.

2. Javed. Sultan complainant in an injured condition lodged the report to the effect that on the night of occurrence, i.e., 27-5-2001, his father Muhammad Sultan, uncle Muhammad Gulzar and relative Gul Zeb were summoned by accused Parvez son of Shah Zaman on which the complainant party came outside the house of accused party where accused Parvez alongwith his brothers and other party members were present. Complainant party also sat with them in an open plot owned by Parvez. Accused Parvez stated that on the murder of their nephew Khalid they were suspected of having a hand in the affair. In this regard conversation started and it was decided that on the next day at 4-00 p.m. the matter would be settled in the mosque on taking oath and thereafter tea was served in the Jirga. Faiz Muhammad who had summoned the complainant party was also present. In the meanwhile one Muhammad Bashir started altercation with, Gul Zeb and he also slapped him and thereafter drew out his pistol and started firing at Gul Zeb. On this quarrel started and all the accused opened fire at complainant party, in consequence of which Muhammad Sultan, Gulzar and Gul Zeb were hit and died at the spot, while with the firing of. Hameed, the complainant was hit on his left ankle and injured. Mst. Shahnaz Bibi and her husband Fiaz Ahmad were stated to have seen the occurrence. Parvez accused and others were suspecting complainant party for the murder of Khalid which led to the instant turmoil.

3. The petitioners moved an application in, the Court of Additional Sessions Judge/Judge, Special Court, Abbottabad for grant of bail which was rejected vide order, dated 27-7-2001. The petitioners have approached this Court with the similar prayer.

4. We have heard at length the arguments and submissions of Mr. Khan Afsar Khan, Advocate for the petitioners and Mr. Muhammad Ayub, Dy. A.-G. for the State assisted by Messrs Ghulam Mujtaba Khan Jadoon and Shabbir Hussain Shah, Advocates for the complainant, in the light of the material on the file.

5. In support of the bail application, learned counsel for the petitioners contended that Muhammad Akram and his son Imtiaz petitioners are not charged in the F.I.R. and they were subsequently associated with the guilt on the basis of supplementary statement made by the complainant and Fiaz Ahmad on 29-5-2001, that Muhammad Haneef and Muhammad Nasim petitioners were born in the years 1985 and 1988 respectively and thus, they are entitled for concession of bail on the ground of minority, that as far as .involvement of Abdul Hameed petitioner is concerned, role attributed to him in the F.I.R. is to the effect that he fired single shot at the left foot of the complainant and that Muhammad Yousaf petitioner is chronic patient of kidney and his treatment in jail is highly impossible and his apprehension of death is there. To substantiate the pleas, reliance was placed on Muhammad Ayub and others v. The State 1987 SCMR 1906, Abdul Waheed v. The State 1994 PCr.LJ 2345, Muhammad Ramzan v. The State 1999 PCr.LJ 1333, Mazhar v. The State 1997 MLD 1553, Muhammad Mansha and others v. The State 1996 PCr.LJ 1981, Ibrar Hussain and others v. The State 1996 PCr.LJ 1679, Muhammad Sudheir v. The State 1998 MLD 1994.

6. Conversely, the learned State Counsel briefed by the learned counsel for the complainant, supported the impugned order and resisted the bail application vehemently contending that there is sufficient material on the file to connect the petitioners with the guilt and thus, they are not entitled to be blessed with the dividend of bail. A case reported as Shah Zarin v. The State and another 1999 PCr.LJ 256, was referred in this connection.

7. It needs no reiteration that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case. The bail under section 497, Cr.P.C. is refused if there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. But if it appears, at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused shall pending such inquiry be released on bail.

8. In the instant case, we find that Muhammad Akram and Imtiaz petitioners, are not nominated in the F.I.R. and subsequently they are associated with the guilt in supplementary statements made by the complainant and Fiaz Ahmad P.W. on 25-9-2001. Admittedly, both of them are shown empty-handed at the relevant time. They are charged for hatching a conspiracy against the complianant party. The question whether they had conspired against the complainant party, is a question which is to be determined at the trial after recording of-the evidence. Muhammad Ramzan v. The State 1999 PCr.LJ 1333.

9. Muhammad Haneef and Muhammad Nasim petitioners are stated to be minors at the time of commission of offence. Photocopies of their school leaving certificates (Annexures "F" and "G") would reveal that they were born in the years 1989 and 1985 respectively. They are entitled for the grant of bail on the ground of minority as held by this Court in Jalal and another v. The State and another 2001 PCr.LJ 1355.

10. Adverting to the case of Muhammad Yousaf and Abdul Hameed petitioners we find that they are directly charged and a specific role has been attributed to them. Prima facie the above-named petitioners are connected with the guilt and we do not feel inclined to admit them to bail. Muhammad Yousaf petitioner is stated to be kidney patient. The mere fact that Muhammad Yousaf is suffering from kidney trouble, by itself, constitutes no good ground to release him on bail.

11. Some of the points convassed by the learned counsel for the petitioners, i.e., delay in lodging of the F.I.R., question of identification and conflict between the ocular testimony and the medical evidence, are matters which require deeper appreciation of evidence which is neither permissible nor admissible at the bail stage because at the bail stage only a bird eye view material of the prosecution is to be taken into consideration.

12. Muhammad Akram, Haneef, Imtiaz and Muhammad Nasim petitioners are allowed bail in the sum of Rs. 2,00,000 with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Abbottabad. The bail application qua Muhammad Yousaf and Abdul Hameed is rejected.

13. We would like to make it clear that all the observations made in this order are to be taken for the purpose of disposal of this bail application alone and will have, no bearing at the stage of trial. The learned trial Judge shall form his own opinion on the basis of evidence produced before him. N.H.Q./390/P Order accordingly.