2023 PLP 172 (MLD)

RAJA SHAKEEL AHMAD, J.

The above titled bail petition is filed by the petitioner/accused for grant of bail, feeling aggrieved from the order dated 29/11/2021 passed by the learned Sessions Judge Diamer, in bail petition bearing number B.A. No. 43/2021.

2. The short story of lodging FIR as per its contents, is that on 14/04/2021 at about 0400 pm, the son of complainant namely Abdul Haq and nephew Muhammad Azam were in Mushkay Bazar for taking vegetables, the accused Saha Mir and Ezam Khan opened fire at there with the intention of murder and they received bullet injuries. The occurrence has been taken place in the presence of witnesses Muhammad Tahir and Amanullah. After lodging FIR, the local police arrested the petitioner, who has filed the instant petition for grant of bail.

3. The learned counsel for petitioner/accused contended that the petitioner/accused is innocent and the local police registered the FIRs on behest of one Shamsul Haq. The petitioner has falsely been involved in the instant with mala fide intention. There is 1 hour delay in lodging FIR. The petitioner is a minor as per his school leaving certificate, as his date of birth is 05/04/2009. There is no any evidence on the surface to connect the petitioner with the alleged offence. The nominated eye-witnesses are close relatives of complainant and planted witnesses. The petitioner/accused neither previously convicted nor involved in any criminal case being a student. The complainant directly nominated the petitioner and his father Saha Mir, but the local police during investigation released the co-accused Saha Mir under section 169, Cr.P.C., which makes the case of petitioner doubtful and the case of petitioner falls within the ambit of further inquiry. The learned counsel for the petitioner further contended that the regarding the same occurrence another FIR No. 04/2021 was got registered wherein the complainant party murdered Asghar Khan but this fact has been concealed and in counter blast the instant FIR has been got registered against the present petitioner. The learned counsel further argued that accused Muhammad Wali of FIR No.04/2021 of murder case named in the FIR No. 05/2021 as eye-witness, then how can be trusted on the FIR No. 05/2021. The learned counsel for petitioner lastly prayed for grant of bail to the petitioner.

4. On the other hand, the learned Deputy Advocate General opposed the contention of learned counsel for petitioner and contended that the petitioner is directly nominated in the FIR and the names of eye-witnesses reflected in the FIR. The occurrence is taken place in a thickly populated area in day time at about 1600 hours. Both the occurrences of FIR No. 04/2021 and 05/2021 are independent occurrence and not the counter FIRs. The offence committed by the petitioner falls within the prohibitory clause of section 497, Cr.P.C., as such the petitioner is not entitled for grant of bail, hence the petition may be dismissed.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the FIR of the case as well as record of the case.

6. Perusal of FIRs Nos. 04/2021 and 05/2021 it on the record that the accused of FIR No. 04/2021 is witnessed in the FIR No. 05/2021 and the time of occurrence is mentioned in the FIRs is same i.e. 1600 hours and the place of occurrence is also the same i.e. Mushkay Bazar Tangir. It is yet to be determined through reliable evidence that either the occurrences are independent or both the FIRs are result of a single event of mishap. The co-accused of petitioner directly nominated by attributing equal role of firing in the FIR has already been released by the police under section 169, Cr.P.C. Perusal of school leaving certificate it is on the record that the petitioner is minor and challan of the case has already been submitted before the Court, means investigation upto the extent of petitioner has already been completed. The section 13, A.O. under which FIR No. 13/2021 got registered is bailable and the only section, under which the FIR No. 05/2021 got registered, is section 324, P.P.C., which doesn't fall within the prohibitory clause of section 497, Cr.P.C. as per provisions of section 10 of Juvenile Justice System Ordinance, 2000. Mere detention of the petitioner prior to conviction amounts to punishment before conviction. No doubt, bail at the stage of trial is not the acquittal, but an interim remedy after tentative assessment of the case.

7. In the light of above reasons, the petitioner was admitted to bail subject to provision of bail bonds mentioned in the short order dated 29/12/2021 of this petition. The instant petition is hereby disposed of in the light of above terms. File. SA/78/GB Bail granted.