2005 P Cr (PLP)

Ehsanul Haq Malik for the State. Gohar Zaman Khan Kundi for the Complainant. Date of hearing: 29th November, 2004. By this single order, I propose to dispose of Cr.M.B. No.271 of 2004, Cr.M.B.C. No. 139 of 2004 and Cr.M.B.C. No. 198 of 2004 as all the three petitions are the outcome of one and the same F.I.R. No.49, dated 16‑1‑2004 registered at Police Station City Bannu for offences under sections 302/324/34, P.P.C.

2. Pithily narrated the facts of the case are that complainant Qalandar Shah (deceased) then injured lodged a report on 16‑1‑2004 in Civil Hospital, Bannu to the effect that on the said day, he had come to city Bannu and when he reached near Murgh Mandi Qayyum Market, Bannu, all of a sudden he heard a voice Maro. He turned and saw Piao Khan son of Sher Zaman, Usman son of Aftab and Roban Shah son of Mir Qadir Shah residents of Seroo Bada Khel, Bannu armed with Kalakovs and .30 bore pistols. They started indiscriminate firing at the complainant as a result of which he got hit and fell down. Previous blood feud enmity between the two families was stated to be motive leading to the incident.

3. In view of the precarious condition of Qalandar Shah, he was referred to Khyber Teaching Hospital, Peshawar for medical treatment. The victim succumbed to the injuries and expired in the hospital on 23‑1‑2004.

4. After their arrest respondents Usman Ali Khan and Mir Piao, applied for grant of bail to the Court of learned Judicial Magistrate but their applications were rejected vide orders, dated 13‑3‑2004 and 8‑4‑2004 respectively. However, both the respondents were granted bail by learned Additional Sessions Judge, Bannu vide orders, dated 3‑4‑2004 and 27‑5-2004. Feeling aggrieved Cr.M.B.C Nos.139 and 198 of 2004 were moved by legal heirs of the deceased seeking cancellation of bails allowed to Usman Ali and Mir Piao. Syed Muhammad Roban Shah petitioner also filed C.M.B. No.271 of 2004 for grant of bail on refusal of the same by the forums below vide orders dated 12‑7‑2004 and 21‑7‑2004 respectively.

5. Mr. Sanaullah Khan Gandapur, Advocate for Syed Muhammad Roban Shah petitioner in support of the bail application vehemently contended that three persons stand charged for commission of the crime with no specific role; that the medical evidence does not support the charge; that accused‑respondents Usman Ali and Mir Piao charged with similar role have been released on bail, therefore, in view of principle of consistency petitioner is also entitled to the same treatment and that in view of the affidavit filed by injured Gul Maroof expressing his ignorance about the incident, case of the petitioner ;necessitates further inquiry to determine his guilt and he is entitled to the concession of bail. Adverting to the applications for cancellation of bail, the learned counsel contended that bail has been granted to respondents Usman Ali and Mir Paio for valid reasons and discretion having been exercised properly, the impugned order hardly calls for interference of this Court. In support of contentions, he placed reliance on Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC. 585, Muhammad Shafique and another v. The State PLD 1990 Pesh. 118, State through Advocate General, N.‑W.F.P. Peshawar v. Laiq Khan 2002 PCr.LJ 941, Sharif Khan v. Seenar Gul and another 1990 PCr.LJ 142, Mst. Irshad Begum v. Muhammad Afzal and another 1985 SCMR 1691, Mian Dad v. The State and another 1992 SCMR 1418, Muhammad Fazal alias Bodi v. The State 1979 SCMR 9 and Muhammad Aslam and another v. The State through A.‑G. Punjab and another 1997 SCMR 251.

6. Mr. Ehsanul Haq Malik, Advocate appearing on behalf of the State assisted by Mr. Gauhar Zaman Khan Kundi, Advocate for the complainant party maintained that the accused are directly nominated in the F.I.R. for commission of the crime and prosecution has collected sufficient material to associate them with the guilt. It was reiterated that the learned lower Court had no justifiable reason to take plea of alibi of respondents Usman Ali and Umar Piao into consideration and make the same a basis of the impugned orders. To augment the contentions, reliance was placed on Waqar‑ul‑Haq v. The State 1985 SCMR

974. Iqbalur Rehman v. The State PLD 1974 SC 83, Sultan Mehmood v. Atta Muhammad and the State 1990 ALD 639, Rizwanullah and another v. The State and another 1999 MLD 1443, Sajjad Khan v. Farooq Ahmad and another 2002 PCr.LJ 1048 (Peshawar), Sher Ali v. Umar Saeed and another 2004 YLR 1234 and Amjad Hussain v. The State 2004 PCr.LJ 550 (Lahore).

7. I have heard at length the arguments and submissions of learned counsel for the parties in the light of material available on record.

8. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of section 497, Cr.P.C. in its totality and the sine qua non for releasing an accused on bail is that the court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non‑bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C. or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the case, of commission of a non‑bailable offence and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. is not to be granted as matter of course, with the simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.

9. It is settled principle of law that at bail granting stage the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question, and hence, no detailed inquiry is to be made by the Court.

10. In the instant case, Syed Muhammad Roban Shah petitioner is one of the accused persons implicated in the case. The petitioner has been apprehended at the spot and the weapon of offence has been recovered from his possession. Usman Ali and Mir Piao respondents have been granted bail principally on the plea of alibi. No such plea has been taken by the petitioner. In view of his direct nomination in the F.I.R. and recovery of weapon of offence from his possession, he is adjudged not entitled to the concession of bail. The case‑law cited on behalf of the petitioner is, distinguishable and speaks of the different situation. It is of no help to the petitioner. Adverting to the petitions for cancellation of bail. I find that Usman Ali and Mir Piao respondents have been granted bail for valid reasons and no legitimate exception can be taken to the impugned orders. The respondents are on bail vide orders, dated 3‑4‑2004 and 27‑5‑2004 respectively: They have not misused the concession of bail. The discretion exercised by the Court below in admitting the two respondents to bail, in the circumstances of the case, is not such requiring interference by this Court.

11. For the aforesaid reasons, finding 'no force in all the three petitions, I dismiss the same.

12. Before parting with this order, I would like to mention that the observations made above are tentative in nature and relate to the order in hand only. H.B.T./275/P Petition dismissed.