2010 PLP 349 (MLD)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

The accused-petitioner Azal Shah was refused bail by the lower fora vide orders, dated 9-10-2009 and 15-10-2009 respectively in case F.I.R. No. 307, dated 5-9-2009 registered under sections 302/324/34, P.P.C. at Police Station Tajori, District Lakki Marwat and now he has filed the instant application praying for his release on bail.

2. The accused-petitioner including his two other accomplices namely Sher Ajam and Gul Zaman were, charged by complainant Sher Nawaz for the murder of his brother Jumaraz. The occurrence described by the complainant is to the effect that on the eventful night he along with his brothers Saeed Nawaz and Jumaraz were asleep in the courtyard of their Baithak while the bulb was lit. It was about 2-45 a.m. (night) when the complainant and his brothers became vigilant on the footfall voice of the accused. The accused fired at the deceased and P.Ws. with their Kalashnikovs with which Jumaraz was hit and expired there and then. The motive for the offence as alleged by the complainant is previous blood feud.

3. Learned counsel for the petitioner contended that the occurrence has taken place at night and the P.Ws. have not identified the accused-petitioners because they were asleep under the enclosure of their Baitahk surrounded by four walls. He further contended that three accused including the petitioner have been charged for firing at the deceased and the P.Ws. but the deceased has received only one injury and that too not certain that with whose fire-shot the deceased was hit and this fact will require further probe after recording evidence. He further argued that the sharing of common intention by the petitioner with his other accomplices will be ascertained when evidence is record in the trial Court and that the accused-petitioner is entitled to bail as the prosecution has not prima facie connected the accused-petitioner with the guilt. He further contended that the Investigating Officer has not recovered the five empties of 7.62 bore. from the spot but the same were produced by the complainant which will make the recovery doubtful as the same can easily be manipulated and the complainant has tried to bring the case in line with the- circumstances of the case. The learned counsel relied on 1997 SCMR 1829, 1980 SCMR 784 and 2004 PCr.LJ 2023.

4. On the other hand, learned State counsel assisted by counsel for the complainant urged that the occurrence has taken place at late night i.e. at 2-45 a.m., however, the -F.I.R. has been lodged very promptly within thirty minutes in Police Station concerned and as such there is no room for consultations and deliberations. They further argued that the accused-petitioner was identified in the light of bulb as well as moon-light and as such prima face case against the accused-petitioner has been made out which falls under the prohibitory clause of section 497, Cr.P.C. They further contended that the recovery of the empties from the spot and medical evidence fully support the story of prosecution and the accused-petitioner is prima facie connected with the guilt and hence, he is not entitled to the concession of bail at this stage. They relied on 2005 P.L.R. 1496 Peshawar, 2006 PCr.LJ 184 Peshawar and 1992 PCr.LJ 394 Peshawar.

5. I have given my considered thought to the above arguments and perused the material available before me. The dicta of higher forums was meticulously viewed.

6. Admittedly, the occurrence has taken place at about midnight i.e. 2-45 a.m. and three accused including the petitioner have been charged for the murder of the deceased with one bullet shot without attributing particular role to the present petitioner, therefore, this factum of the case will be scrutinized at the time of recording evidence in the trial Court that how far the present accused-petitioner is responsible for inflicting the injury to the deceased or having shared the common intention with the other accomplices and as such the case against the accused-petitioner will require further probe under the contemplation of subsection (2) of section 497, Cr.P.C. Moreover, the deceased and the P.Ws. were asleep inside the enclosure of the Baithak owned by the complainant and the Investigating Officer has not succeeded to point out any bullet marks on the wall in the line of range of the assailants nor the alleged empties have been recovered by the Investigating Officer at the time of preparation of site-plan nor any point to the presence of empties has been ascribed in the site-plan, therefore, this fact will require further scrutiny when the complainant Sher Nawaz comes to the witness box and as such this will make the case one of further inquiry. So far as the medical evidence available on the file is concerned, the stamp of bullet injury is at the back of the deceased which fact does not correspond with the story of prosecution wherein they have alleged that they became alert and saw the accused at the time of their approach to the scene of occurrence, hence, this factum will further bring the case of prosecution under the ambit of contemplation of subsection (2) of section 497, Cr.P.C. being one of further inquiry.

7. In view of the above facts and circumstances and without touching the other merits of the case, this petition is accepted and the petitioner is admitted to bail on furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate. S.A.K./202/P Bail granted.