Abdul Majeed vs State

2013 P Cr. L J 1234

[Peshawar]

Before Qaiser Rashid Khan, J

ABDUL MAJEED---Petitioner

Versus

The STATE and another---Respondents

Bail Petition No.17 of 2013, decided on 28th February, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 404 & 34---Qatl-e-amd, dishonestly receiving stolen property, common intention---Bail, refusal of---Accused and co-accused were alleged to have murdered the deceased due to a matrimonial dispute---Accused was directly charged in the F.I.R. for firing at the deceased with his weapon---Occurrence took place at a spot, which was visible from the place where the complainant was present, therefore occurrence could not be termed as an unseen occurrence---Version of complainant was supported by medical evidence and recovery of empties from the place attributed to the accused on the site plan---Strong motive existed for commission of the offence---Offence with which accused was charged carried capital punishment---Bail petition of accused was dismissed in circumstances.

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

----S. 497---Bail sought on medical grounds---Laryngeal and pharyngeal disability---Plea that because of such disability accused faced problems with his conversation---Validity---Disability of accused was laryngeal and pharyngeal in nature, which caused him problems in his conversation---Such disability was not in the strict sense a disability which made the accused incapable of attending to his own needs and ordinary chores---Accused was refused bail accordingly.

Sanaullah Khan Gandapur and H. Ghulam Muhammad Sappal for Petitioner.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Saifur Rahman Khan for the Complainant.

Date of hearing: 28th February, 2013.

JUDGMENT

QAISER RASHID KHAN, J.---Having failed to secure the concession of bail from the courts below, the accused/petitioner namely, Abdul Majeed has come up to this court for the same relief in case F.I.R. No.587 dated 8-11-2012 registered under sections 302/404/34, P.P.C. at Police Station Saddar, D.I. Khan.

2.The allegations as contained in the F.I.R. lodged by Shahid Rehman complainant are that on 8-11-2012 at about 3 p.m., the accused/petitioner along with his co-accused dragged one Ikramullah to the bungalow and fired at him as a result of which he got hit and expired.

3.Learned counsel for the petitioner argued that the accused/petitioner is innocent and has been falsely charged due to patent mala fide intentions; that the alleged occurrence is an unseen one; that three persons have been charged for firing at the deceased but it is not known as to whose fire shot proved fatal which makes the case of the accused/petitioner one of further inquiry. He lastly argued that the petitioner is entitled to the concession of bail on medical grounds as well and in this respect he referred to the findings of the standing Medical Board, DHQ Teaching Hospital, D.I. Khan wherein the petitioner has been termed as permanently disabled and that he cannot be treated inside the hospital.

4.The learned A.A.G. counsel assisted by the learned counsel for the complainant on their turn vehemently opposed the bail application and argued that the accused/petitioner has been directly charged in the F.I.R. for causing the death of the deceased; that the medical report and the recovery of empties from the spot support the prosecution story and thus the accused/petitioner is not entitled to the concession of bail.

5.Arguments heard and record perused.

6.As per the report of the complainant, on the day of occurrence, he and his brother Ikramullah were returning from the bazaar on their Metro motorcycle and at about 3 p.m., Mst. Shazia Bibi daughter of Abdul Majeed called them on phone to see her in the street of Waris City. When reached the bungalow of Imran Khan, they saw Abdul Majeed armed with 'machine', Abdul Waheed son of Abdul Majeed and Naik Ali Shah armed with pistols who caught hold of

Ikramullah, dragged him inside the bungalow and fired at him with which got hit and fell down. Due to fear, the complainant ran away and came to the spot along with the police and saw his brother lying dead. Motive for the offence was stated that Mst. Shazia Bibi daughter of Abdul Majeed had left her house and contracted marriage with deceased Ikramullah. The accused/petitioner is directly charged in the F.I.R. for firing at the deceased with his 'machine' (a word used for Kalashnikov in the local jargon). From a cursory glance at the site plan, it is amply evident that the occurrence took place somewhere in the porch-cum-courtyard of the bungalow which is visible from the place where the complainant was present. The story of the complainant is not only supported by the medical report but also by the recovery of three empties of 7.62 bore from the place attributed to the accused/petitioner in the site plan and the complainant made good his escape after the firing on account of fear. Thus the occurrence at this stage and given the contents of the F.I.R. cannot be termed as an unseen one. There is also a strong motive for the offence. As far as the argument of the learned counsel for the petitioner regarding the disability of the accused/petitioner is concerned, the findings of the standing Medical Board in this respect are as below:--

"* Patient is a known case of road traffic accident, few months back.

* As per record he was admitted in the Hospital with chest and head injury and was treated in D.I. Khan and Peshawar.

* He is having laryngeal and pharyngeal Paralysis on examination. Which is from the date of injuries. He is permanently disabled and is not improved with conversation treatment."

His disability so to say is related to his laryngeal and pharyngeal aspect alone and on account of the same, the petitioner is facing some problem with his conversation. However, the same is not stricto sensu a disability which has made him incapable of attending to his own needs and ordinary chores. Thus on this score, the petitioner has not made out a good ground for the grant of bail to him. The offence with which the accused/petitioner is charged entails capital punishment. Taking a tentative assessment of the available record, there are reasonable grounds to prima facie connect the accused/petitioner with the commission of offence and thus he is not entitled to the concession of bail.

7.For the reasons mentioned above, this petition being bereft of any merit is hereby dismissed.

8.Any observation made in the order being purely tentative in nature should in no way prejudice the proceedings before the learned trial Court where the case be decided on its own merits after recording evidence.

MWA/140/P Bail petition dismissed.