2015 PLP 226 (MLD)

ASSADULLAH KHAN CHAMKANI, J.

Petitioner Gul Mast, who has been declined bail by learned two courts below, through this further application seeks the concession of bail from this court, in case F.I.R. No.525 dated 13-7-2014, registered under sections 302/ 324/34 P.P.C. at Police Station Khazana, District Peshawar.

2. Allegations against the petitioner are that on 13-7-2014 at 20.00 hours, he along with his sons/absconding co-accused, namely, Nosher and Gul Nawaz, while duly armed with firearms went to the house of deceased Khan Gul, called upon him and on his coming out from the house, committed his murder by firing at him effectively. Motive behind the occurrence is stated to be that on the day of occurrence at morning, accused/petitioner was charged by the deceased for his vulgar conduct with his minor daughter Mst. Anisa. The occurrence was reported by complainant Khaista Gul which was reduced into writing in the shape of F.I.R. In addition to complainant, the occurrence is stated to have witnessed by P.Ws. Jehangir, Alamgir and Naved.

3. Learned counsel for the petitioner argued that occurrence is nocturnal reported with a delay of 2 hours, hence, possibility of mistaken identity, consultation and deliberation could not be ruled out in the circumstances; that medical evidence contradicts the version of the complainant as there is no allegation of causing blunt injury to the deceased by the accused while according to medical evidence the deceased died because of blunt injury; that the alleged eyewitnesses are not supporting the prosecution case in their statements under section 161, Cr.P.C. He last argued that on tentative assessment, case of the petitioner is open for further inquiry and in such like circumstances, he is entitled to be enlarged on bail. Learned counsel placed reliance on the following judgments:-- (1) 1997 SCMR 32 (2) 2011 SCMR 1392 (3) 2008 PCr.LJ 1332 (Lahore) (4) 2010 PCr.LJ 537 (Karachi) (5) 2011 YLR 956 (Peshawar) (6) 2010 PCr.LJ 83 (Peshawar) (7) 2013 PCr.LJ 856 (Lahore) (8) 1999 PCr.LJ 1464 (Lahore) (9) 1994 PCr.LJ 540 (Lahore). (10) 1996 PCr.LJ 1165.

4. Conversely, learned counsel for the complainant contended that petitioner is directly charged for murder of the deceased along with his absconding co-accused; that motive strongly supports the prosecution case; that recovery of crime empties and FSL report further supplement the prosecution version; that any discussion on ocular account and injury on the person of the deceased would amount to deeper appreciation of evidence, which is the sole domain of the learned trial court; that complete challan has already been submitted on 14-8-2014 and trial is to commence shortly and in such like circumstances the normal practice is to direct the learned trial court for conclusion of trial in some specific time; that on tentative assessment of the material available on record, petitioner is prima facie connected with the offence punishment of which does fall within the Prohibitory Clause of section 497 Cr.P.C. hence, he is not entitled to concession of bail.

5. Learned State counsel adopted the arguments of learned counsel for the complainant and sought dismissal of the petition.

6. I have heard the arguments and perused the record.

7. Admittedly, there is neither any allegation of altercation or grappling between the accused and the deceased prior to the incident nor any allegation of thrashing of the deceased by the accused with any blunt weapon. Complainant has charged the accused/petitioner along with his sons/absconding co-accused for firing at the deceased whereas according to autopsy report of the deceased, he died due to blunt trauma to testes and no fire arm injury has been found on his person. The tentative assessment of the ocular and medical evidence disclosed a glaring conflict between the two, which makes the case of the petitioner debatable for the purpose of bail. In this regard reliance may be placed on case titled, "Syed Abdul Baqi Shah v. The State" (1997 SCMR 32) and "Saeed Khan v. The State and others" (2011 SCMR 1392).

8. As regards the argument of learned counsel for the complainant that complete challan has been drawn and trial is to commence shortly, therefore, in such eventualities keeping in view the routine practice, the courts avoid to grant or refuse bail, is unpersuasive in light of the dictum laid down by the apex court in case titled, "Nisar Ahmad v. The State and others" (2014 SCMR 27), wherein the Hon'ble Supreme Court has held as under:-- "As per the argument of complainant's learned counsel that the bail granting order may affect the merits of the trial which is likely to commence is concerned, there is no bar with this court to grant bail at any stage provided petitioner has made out a case of further enquiry. The rule laid down in Muhammad Ismail v. Muhammad Rafique (PLD 1989 SC 585), is a rule of propriety and practice and cannot be taken as a bar for the grant of bail if an accused has made out a case for the same. In Muhammad Ismail's case supra, this court alluding to this practice noted that "it is well known practice of the superior courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge". But the court in the operative part of the same judgment attended to the nature and scope of this practice of the court by holding as follows:-- "The question then arises; whether, subsection (2) of section 497, Cr.P.C. would have operation notwithstanding the afore-stated practice of this court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. the same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is retable to the exercise and grant of right".

9. For the reasons discussed above and deriving wisdom from the judgments of the Hon'ble Supreme Court (supra), I am inclined to exercise the discretion of bail in favour of the petitioner. Resultantly, this petition is allowed. Accused/petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of learned Judicial Magistrate/MOD, concerned. The sureties must be local, reliable and men of means. HBT/443/P Bail granted.