Fakhre Alam vs State

2012 Y L R 2566 [Peshawar]

Before Waqar Ahmad Seth, J

FAKHRE ALAM and another---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1079-P of 2012, decided on 17th August, 2012.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused and co-accused were alleged to have fired at the complainant and his brothers with the intention to kill them---Night time occurrence---No bulb/light shown in the site plan---No source of information provided to implicate accused and co-accused---Injuries caused on lower part of leg (non-vital part) with no damage to bone or nerves---No repetition of fire despite victims being at the mercy of the accused and co-accused--- Applicability of S. 324, P.P.C, could only be determined at trial after recording evidence---No empties recovered from the spot---No weapon recovered since arrest---Record suggested that accused was present in University Hostel at the time of occurrence and co-accused was present in a meeting, in respect of which number of affidavits had been executed by different members/participants---Case was one of further inquiry---Accused and co-accused were released on bail.

Ishtiaq Ibrahim for Petitioners.

Fazlur Rehman for the State.

Mian Arshad Jan for the Complainant.

JUDGMENT

WAQAR AHMAD SETH, J.---Accused/petitioners, namely, Fakhre Alam and Farhat Alam having remained unsuccessful in obtaining their release on bail in case F.I.R. No.402 dated 13-6-2012 charged under section 324/34, P.P.C. Police Station, Nowshera Cantt: have filed this petition for release on bail.

2.Arguments heard and record perused.

3.Complainant Shafiq Alam aged about 13/14 years have charged both the accused/petitioners for causing fire arm injury, in the life attempt of his i.e. complainant and his two brothers namely Basit Alam and Noor Alam. The said two brothers of the complainant escaped unhurt while complainant received two fire shots. According to the report of the Medical Officer no bone has been fractured.

4.It is by now settled principle of law that at bail stage only the tentative assessment of evidence is to be made and deeper appreciation of evidence is neither required nor warranted by law, therefore, the court has to tentatively form its opinion by assessing the evidence available on record without going into the merits of the case.

5.According to the complainant and the version given in the F.I.R. the accused/petitioner who were armed with guns, with the intention to kill the victims i.e. complainant and his two brothers, fired on the lower part of his legs causing multiple injuries, during night time and then disappeared from the scene of occurrence. No source of information has been given nor any bulb has been shown in the site plan etc. No doubt the offence under section 324, P.P.C. falls within the prohibitory clause of section 497, Cr.P.C. However, in the present case, the complainant has himself stated that the accused/petitioner fired at him along with his two brothers but caused the injuries on lower part of his legs without injuring/ damaging the hone or nerves in that process does not mean that the accused/petitioners intended to kill or that he had the knowledge that he

by that act would be guilty of murder. In order to gather such intention or knowledge, the seat of injuries is of great importance.

6.Record reveals that the injuries are on the non-vital part of the body and moreover, the accused petitioner did not repeat the overt act to its extreme, although the complainant and his two brothers were at their mercy, therefore, in view of the injuries and sufficient time to repeat the firing, while the complainant was at the mercy of the accused, whether section 324, P.P.C. can be invoked or not is a question, which can only be resolved by the trial court after taking into consideration the relevant evidence to be recorded in this respect, thus, in view of the matter, the case appears to be of further inquiry as envisaged in subsection (2) of section 497, Cr.P.C.

7.No empties have been recovered from the spot nor any weapon of crime has been recovered from the accused/petitioners since their arrest. Moreover, the record suggests that accused/petitioners Fakhre Alam is a student and at the relevant time he was present in the University/Hostel Block-B and accused/petitioners Rifat Alam was present in a meeting of some action committee and in this respect number of affidavits executed by different members/participants are on record, which further strengthen the case for grant of bail.

8.It will not be out of place to mention here that an accused, under the law is presumed to be innocent until the guilt is proved. Thus, a presumable innocent persons are entitled to be released on bail by giving them an opportunity to defend their case and the fact that both the accused/petitioners are detained since 25-7-2012 and no useful purpose will be solved by keeping them behind the bars, therefore, as the bail cannot be withheld as a punishment, the accused/petitioners are entitled to the concession of bail on this score too.

9.For the reasons discussed above this bail application is allowed. Petitioners are directed to be released on bail on furnishing bail bonds in the sum of Rs.200,000 (two lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.

Above are the reasons of my short order of even date.

MWA/280/P Bail allowed.