2023 PLP 1128 (MLD)

MUHAMMAD IJAZ KHAN, J.

This order is directed to dispose of application filed by petitioner namely Sher Bahadar for grant of post arrest bail in case FIR No. 12 dated 24.03.2021 registered under sections 302, 34, P.P.C. at Police Station Salarzai District Bajaur.

2. As per contents of the FIR, the complainant namely Manzoor has reported the matter to local police at DHQ hospital Khar whereby he has charged the present accused/petitioner namely Sher Bahadar along with other co-accused for committing the murder of his father namely Qayum Khan. Motive behind the occurrence was stated to be previous blood feud enmity between the parties.

3. Arguments of learned counsel for the petitioner as well as learned Assistant A.G. appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.

4. The record would show that the complainant is not the eyewitness of the occurrence, however, in the FIR he has stated that the alleged occurrence has been witnessed by Irfan and Abdullah who on the second day of the occurrence have recorded their statements under section 161, Cr.P.C. where too the present accused/petitioner has been charged for making effective firing at the deceased namely Qayum Khan. The prosecution has also shown recovery of eight empties of 7.62 bore from the scene of occurrence, however, such stance of the prosecution is totally belied by the medico-legal evidence of the deceased where the medical officer has opined as under;- There was a large shuttered wound from left eyebrow to occipital which was linear lacerated in front half and in back half was having multiple irregular extensions. Bone of the skull was fractured into pieces and brain was coming out in the wound as a whole, having laceration of bones on brain matter. There was another 04 cm wound with irregular margins beneath bone of skull was cut on right parietal scalp. No any burn, powder mark, hole of firearm injury was found on the skull or clothes." The record further shows that even the second opinion of the doctor was obtained by the Investigating Officer regarding the kind of weapon who accordingly opined as under;- As the size and shape of wound was described on injury sheet. The definite object used is not clear. In view of the above it cannot be said with certainty that the deceased has died because of the firearm injury and thus for the time being case of the accused/petitioner is one of further inquiry. In the case of "Syed Abdul Baqi Shah v. The State" reported as 1997 SCMR 32, the Hon'ble apex Court has held that the benefit of the conflict in the ocular and medical evidence from the tentative assessment thereof, will weigh in favour of the petitioner while disposing of his application for bail. Similarly, in the case of "Saeed Khan v. The State" reported as 2011 SCMR 1392, the Hon'ble apex Court has recorded similar observations by holding that there is a glaring contradiction between the FIR/supplementary statement and the Medico-legal Certificate issued in respect of the injured victim inasmuch as according to the FIR/ supplementary statement the alleged victim had received three firearm injuries on his right lower leg at the hands of the culprits but according to the Medico-legal Certificate issued in respect of the alleged victim there was only one fire shot received by him on his right lower leg. These factors have been found by us to be sufficient to put us to caution regarding veracity of the allegations levelled by the complainant party against the petitioner. In the case of "Ehsan Akbar v. The State and 02 others" reported as 2007 SCMR 482, the Hon'ble apex Court has also held that as far as the case of respondent No.3 Abdul Ghaffar is concerned, there is a conflict between the prosecution version and the medical evidence. As per prosecution case, he gave Chhuri blow on the neck of the deceased whereas according to MLR as well as the diagram all the injuries were caused with fire-arm weapon. As such his case is on different footing.

5. In the case of "Muhammad Ijaz v. The State and others" reported as 2022 SCMR 1271, the Hon'ble apex Court has held that benefit of doubt, if established, can be extended even at bail stage. In the case of "Resham Khan and another v. The State and another" reported as 2021 SCMR 2011, the Hon'ble apex Court has also extended the benefit of doubt to an accused/person even at bail stage by observing that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bars. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not. Similarly, in the case of "Ali Raza v. The State and others" reported as 2022 SCMR 1245, the Hon'ble apex Court has reiterated the aforementioned rational of law by observing that benefit of doubt could be extended to an accused person even at bail stage if the facts of the case so warrant.

6. Furthermore, Challan in the case has already been put in Court and the trial is ripe for its commencement and thus further custody of the accused/petitioner is neither required to the prosecution nor the same would serve any useful purpose. The Court was also informed that the accused/petitioner is an old aged person of 72 years, therefore, on this score too, he is entitled for the concession of bail.

7. In the given facts and circumstances the accused/petitioner has made out a case for the grant of bail. Accordingly, this bail application is allowed and the accused/petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs. 200,000/- (two hundred thousand) with two sureties in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means. Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial Court during the course of trial. SA/308/P Bail granted.