Lala Jan vs Nurab Khan

2012 Y L R 2898

[Peshawar]

Before Assadullah Khan Chamkani, J

LALA JAN---Petitioner

versus

NURAB KHAN and another---Respondents

Criminal Miscellaneous Bail Application No.1028-P of 2012, decided on 16th August, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Qatl-e-amd, attempt to commit qatl-e- amd, common intention---Bail, grant of---Belated implication---Chance of consultation and deliberation---No identification parade conducted---Effect---Allegation against accused and co- accused persons was that their firing resulted in the death of the deceased and also caused injuries to two persons---Complainant initially charged unknown persons in the F.I.R. for commission of the offence but subsequently charged the accused and two other persons for the same---Belated statement of complainant after a long delay in which he charged the accused lost its authenticity because of chance of consultation and deliberation---No test identification parade was conducted to prove the belated charge---One of the co-accused had been acquitted by the Trial Court---Although prosecution contended that accused remained an absconder for 14 years but bail could be granted if an accused had a good case for bail on merits and mere absconsion would not cone in his way while granting bail---Accused was granted bail, in circumstances.

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

----S. 497---Bail---Abscon dm ent---Effect---Bail could be granted if an accused had a good case for bail on merits and mere abscondment would not come in his way while granting bail.

Khawaja Muhammad Khan Gara for Petitioner.

Malik Muhammad Rehan for Respondent.

Date of hearing: 16th August, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Petitioner Lala Jan is , seeking his release on bail in case F.I.R. No.384 dated 30-12-1998 registered for offence under sections 302/324/34, P.P.C. at Police Station Usterzai District Kohat.

2.The complainant Nurab Khan reported the matter to the police, in terms, that he loaded the luggage and sat passengers in Pick Up bearing Registration No.PRO/8496 and started proceeding towards Orakzai Agency and when reached Jungle Rest House, a Suzuki color brown after overtaking, two unknown persons sitting therein opened fire with fire-arm at us as a result Qasam Gul was hit and died on the spot while Muhammad Shafiq Khan and Fazle Akbar Khan sustained injuries; hence the case was registered against unknown accused.

3.Learned counsel for petitioner contended that there is no ocular or circumstantial evidence regarding the complicity of the petitioner in the instant case. Further submitted that the petitioner has been charged in the crime due to belated statement of complainant, which is the result of consultation and deliberation. He was of the view that the ocular story is belied by medical version, the site plan and other circumstances and that the incident has not been occurred in the manner, time and place as portrayed by the complainant. He maintained that the co-accused has been acquitted by learned trial Court, therefore, on the same set of evidence the petitioner is also likely to get acquittal after commence of trial and that the petitioner was minor at the time of alleged occurrence, hence deserves special treatment and that the petitioner had not absconded as since his childhood he was at Karachi for earning his livelihood and being minor at the tragic time, possibility of avoiding arrest due to fear, tender age and false implication in the case cannot be ruled out, therefore, in this view of the matter the petitioner has made out a case for further inquiry.

4.Learned State counsel while opposing this petition contended that the petitioner has been charged for commission of offence by the complainant in a statement recorded under section 164, Cr.P.C., which is corroborated by evidence, moreso, when he remained fugitive from law for a considerable time, therefore, on the available record the accused is not entitled to the concession of bail.

Arguments heard. Record perused.

5.The record reveals that in the F.I.R. the complainant Nurab Khan son of Habib Khan charged two unknown persons for murdering one person Qasam Gul and injuring two others, namely, Muhammad .Shafiq Khan and Fazle Akbar Khan. The record is further suggestive of the fact that the local police arrested one Tor GuI and Rashid Hussain in the instant case, however, on 15-1- 1999 P.W. Gohar Ali appeared before the Illaqa Magistrate and disclosed that accused/petitioner while accompanying another boy aged 17/18 years was armed with kalashnikov and pistol, respectively opened firing upon us. In the light of said statement, on 10-2-1999 the complainant

withdrew his charges from accused Tor GuI, Rashid Hussain and Abid Hussain and charged the present petitioner alongwith two others for the commission of alleged offence. Belated statement of the complainant after a long delay in which he charged the petitioner along with two others loses its authenticity being charge after consultation and deliberation. Moreover, no test of identification parade was conducted by the prosecution through the complainant and other P.Ws. to prove the belated charge. The learned State counsel when confronted with such situation, half heartcdly argued the case but his main stress was on abscondance of the accused for about 14 years. Additionally, the co- accused of the petitioner, namely, Shah Jehan appeared before the court and faced trial and at the conclusion he was acquitted.

6.The main stress from the prosecution side and complainant counsel was regarding the long absconcion of the accused but it is well-settled principle of law that bail can be granted if an accused has a good ease for bail on merits and mere absconcioy would hot cone in the way while granting bail, hence this court is of the view that the learned trial Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner.

For what has been stated above, this petition is allowed and the petitioner is granted bail in the sum of Rs.4,00,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.

Above are the detailed reasons for the short order of even date.

MWA/299/P Bail granted.