2005 PLP 2418 (YLR)

Haji Muhammad Yousaf, petitioner and his cousin Fazal Mahbood absconding co-accused stand involved in case F.I.R. No.54 dated 28-1-2005, registered under section 302/34, P.P.C. at the instance of complainant, Zahir Karam, father of Asadullah deceased. The petitioner moved applications for grant of bail before the forums below i.e. Judicial Magistrate./Illaga Qazi' and Sessions Judge/Zila Qazi, Swat, which were rejected by orders dated 29-3-2005 and 26-4-2005 respectively. The petitioner, feeling aggrieved, has approached this Court with the similar prayer.

2. The prosecution story in brief is that on the day of occurrence i.e. 28-1-2005 at 1145 hours deceased Asadullah was standing in front of the gate of his house whereas the complainant was standing on the roof of the house when Fazal Mahbood, absconding co-accused and Muhammad Yousaf, petitioner, duly armed, emerged at the spot. Fazal Mahbood resorted to firing as a result whereof Asadullah deceased was hit and died at the spot. After the occurrence, the accused decamped from the spot. Co-villagers of the complainant namely, Dilaram Khan, Haider Ali and many others were stated to have witnessed the occurrence. Existence of bad blood between the two families was said to be the motive for the incident.

3. Barrister Zahurul Hag, appearing on behalf of the petitioner, mainly contended that in view of the role attributed to the petitioner, learned forums below had no justification to decline the concession of bail to the petitioner on the ground that absence of the petitioner from 28-1-2005 to 1-3-2005 disentitles him for the relief of bail. The learned counsel maintained that the liability of the petitioner under section 34, P.P.C. cannot be determined at this stage so as to bring the case within the mischief of section 497, Cr.P.C. To augment the contentions, he placed reliance on Hasan Din v. Mohammmad Mushtaq and 2 others 1978 SCMR 49; Haji and 4 others v. The State 1976 SCMR 20; Rustaui Ali and 4 others v. The State 1990 PCr.LJ 1181 Lahore and Kabir v. The State 1998 PCr.LJ 1311 Lahore.

4. Mr. Muhammad Saeed Khan, learned A.A.-G. assisted by Mr. Muhammad Sher Khan, Advocate learned counsel for the complainant, on the contrary, contended that prosecution is in possession of sufficient incriminating material to connect the petitioner with the commission of crime and having shared common intention with co-accused, the petitioner has been refused bail for valid reasons. In this regard, reliance was placed on Dhani Bux and others v. The State 1989 SCMR 239; Sher Ali v. The State 1998 SCMR 190; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Munawar v. The State 1981 SCMR 1092; Zarif Khan v. The State and another 2005 PCr.LJ 330 Peshawar and Raharn Sher v. Mst. Malika and another 2005 PCr.LJ 288 Peshawar.

5. I have heard in detail the arguments of the learned counsel for the parties in the light of the material on record.

6. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the offence falling in the first category, the Court must refuse bail. However, where the accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence, the Court will not conduct a preliminary inquiry but will only have tentative assessment of the material on the record. Deeper appreciation of evidence and circumstances appearing in the case are neither desirable nor permissible at bail stage.

7. No doubt, it is true that the petitioner stands directly nominated in the promptly lodged F.I.R. as one of the accused persons but it is equally true that effective role of firing resulting into murder of Asadullah deceased is attributed to Fazal Mahbood absconding co-accused. The only allegation against the petitioner is that he had accompanied the absconding co-accused at the time of incident. The mere presence of a person on the spot does not necessarily attract section 34, P.P.C. The liability of the petitioner under section 34, P.P.C. cannot be determined at this stage so as to bring the case within the prohibition contained in section 497, Cr.P.C.

8. In view of the above, the instant case is held to be that of further inquiry. Consequently, the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of Illaqa Qazi/Judicial Magistrate, Swat. Above are the detailed reasons of my short order dated 30-5-2005, whereby the application of the petitioner was accepted and he was admitted to bail. H.B.T./453/P Bail granted.