2014 Y L R 896

[Peshawar]

Before Assadullah Khan Chamkani, J

AMIR alias AMIR SULTAN and 2 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.378 of 2012, decided on 3rd September, 2012.

(a) Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-e-amd,
rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry--Accused and co-accused persons were alleged to have fired at the complainant party---Accused
was not charged in the F.I.R. but was implicated on basis of subsequent statement recorded under
S. 164, Cr.P.C. by a female relative of the complainant---Name of said female had neither been
mentioned in the F.I.R. as a victim nor as witness of occurrence but when the site plan was
prepared by Investigation officer, she was shown as an injured of the occurrence---Perusal of site
plan revealed that no blood was recovered from place of presence of said female and in any case
she had received an injury on non-vital part of her body---Mere abscondment of accused would
not create any hurdle in the way of bail, if otherwise, he was entitled to concession of bail--Mere commencement of trial or submission of challan before the court was no ground for refusal
of bail if case of accused otherwise was one of further inquiry---Accused was released on bail, in
circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 148 & 149--Attempt to commit qatl-e-amd,
rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry--Accused persons were alleged to have fired at the complainant---Accused persons attributed role

of ineffective firing---Effective firing had been attributed to one of the co-accused---No empty
shells or spent bullets were recovered from the spot---No supporting evidence to show
participation of each and every accused in the commission of the alleged offence---Mere
abscondment of accused persons would not create any hurdle in the way of bail, if otherwise,
they were entitled to concession of bail---Mere commencement of trial or submission of challan
before the court was no ground for refusal of bail if case of accused persons otherwise was one
of further inquiry---Accused persons was released on bail, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

(c) Penal Code (XLV of 1860)---

----S. 149---Unlawful assembly---Participation of an accused person---Burden of proof---Duty of

prosecution to prove the participation of each and every accused in the commission of the
offence.

(d) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Abscondment of accused---Effect---Mere abscondment of accused would not

create any hurdle in the way of bail, if otherwise, he was entitled to concession of bail.

(e) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail---Further inquiry---Submission of challan before court---Commencement of

trial---Effect---Mere commencement of trial before court or submission of challan before the
court was no ground for refusal of bail if case of accused was otherwise one of further inquiry
within the ambit of S. 497(2), Cr.P.C.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Muqadar Khan for Petitioners

Muhammad Nisar for the State.

Date of hearing: 3rd September, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Having failed to secure relief from the courts
below, Amir alias Amir Sultan, Sher Zada and Askar have applied for bail before this court in
case F.I.R. No. 29 dated 3-7-2010 under sections 324/148/149, P.P.C., registered at Police
Station Kalkot Dir(upper).

2.
Facts of the case are that Sahib Shah, complainant, lodged a report that he on 3-7-2010 at
13.30 hours was busy in working in his field, when accused Askar, Nazar, Bacha and Sher Zada
came duly armed with Kalashnikovs and started firing at him, as a result of which, he was hit
with the fire shot of one Bacha on his left foot thigh and, as such, the above referred F.I.R. was
registered. Later on, it was on 21-7-2010 when Mst. Zaib Nisa and two others recorded their
statements under section 164, Cr.P.C. wherein they nominated the present petitioner Amir Sultan
for causing fire-arm injury to Mst. Zaib Nisa.

3.
Counsel for the petitioners argued that the accused/petitioners are innocent and have
falsely been implicated in the case. He argued that petitioners Askar and Sher Zada are charged
for ineffective firing at the complainant and nothing in shape of incriminating articles are shown
to have been recovered from their place of presence, whereas, the petitioner Amir Sultan has
even not been charged by the complainant in his first report rather he has been charged by Zaib
Nisa in her statement recorded under section 164, Cr.P.C. on 21-7-2010, after seventeen days of
the occurrence, for causing injury to her, but her name is neither mentioned in the first report as
victim nor witness of the occurrence, however, she has been shown as victim of the occurrence
in the site plan, which has been prepared on the following day of the occurrence, therefore, case
of petitioners requires further inquiry and they are entitled to the concession of bail.

4.
As against this, learned counsel for complainant and State Counsel argued that the
accused/petitioners Askar and Sher Zada are directly charged by the complainant for firing at
him and facilitating his co-accused for causing injury to the complainant and in this respect
Medico-legal Report and other material available on the file also support the version of the
complainant, whereas, petitioner Amir Sultan, though, is not charged in the F.I.R., however,
during investigation, one Zaib Nisa recorded her statement under section 164, Cr.P.C. wherein
she specifically charged Amir Sultan for causing injury by making firing at her and the
Investigating Officer has also shown her place of presence in the site plan and her version has
also been supported by the Medico-legal Report. They further argued that the petitioners
remained absconder and were arrested on 30-5-2012 and during this period proceedings under
section 512, Cr.P.C. have been completed against them. They further pointed out that challan has
been put in court, therefore, at this stage of the case, the petitioners are not entitled to the
concession of bail.

5.

Arguments heard and record perused.

6.
As far as the case of Amir Sultan is concerned, he is not charged in the F.I.R. but, later
on, one Zaib Nisa, the close relative of the complainant, recorded her statement before
Magistrate under section 164, Cr.P.C. on 21-7-2010, wherein she charged Amir alias Amir
Sultan. This is very strange that name of the said Zaib Nisa has not been mentioned in the F.I.R.
but when the site plan was being prepared by the Investigating Officer, she was shown as injured

of the occurrence. The perusal of site plan would also reveal that no blood was recovered from
her place of presence. Moreover, she received injury on non-vital part of her body.

As far as the case of petitioners Askar and Sher Zada are concerned, though, they are
charged in the F.I.R. but they have been attributed ineffective role of firing and the effective role
has been attributed to Bacha son of Askar. The allegations against the 'petitioners in the F.I.R.
are that they were armed with Kalashnikovs and started indiscriminate firing but no empty shell
or spent bullet has been recovered from the spot. It is the duty of the prosecution to prove the
participation of each and every accused in the commission of offence but in the case in hand,
there is no supporting evidence available on the record to show the participation of each and
every accused in the commission of offence.

The State counsel further pointed out that the petitioners remained absconder for
sufficient time, so, they are not entitled to the concession of bail. Regarding the absconsion, it is
the settled proposition of law that mere absconsion would not create any hurdle in the way of
bail, to the petitioners if otherwise, they are entitled to the concession of bail. The learned State
counsel also pointed out that as the challan in the case has been put in court, therefore, the
petitioners, at this stage of the case, are not entitled to be released on bail but his this arguments
is also not convincing one because mere commencement of trial before the Court or submission
of Challan before the Court is no ground for refusal of bail if case of the accused is otherwise of
further inquiry within the ambit of subsection (2) of section 497, Cr.P.C. Reliance in this regard
can be placed on the case of "Muhammad Ismail v. Muhammad Rafique and another, PLD 1989
SC 85.

Consequently, this application is accepted and the petitioners are released on bail in case
they furnish bail bonds in the sum of Rs.1,00,000 (one lac) each with two sureties each in the
like amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are
local, reliable and men of means.

Before parting with this order it is clarified that the observations made in this order are
tentative in nature and relevant only for the purpose of decision of this bail petition. The learned
trial Court will not be influenced by an observation in any manner whatsoever.

MWA/294/P

Bail granted.