Naseer Muhammad vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc.BA No.132-B/2014 Date of hearing: 9.07.2014

Petitioner(s) : Naseer Mehmood s/o Izat Khan by Mr. Hamayun Wazir & Faqir Mehbool-ul-Hameed Advocate.

Respondent(s) : State by Saif-ur-Rehman Khattak

A. A.G,

Respondent by Mr. Marghoob Hassan Khan Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Being un- successful before the two Courts below to get the concession of post arrest bail, Petitioner Naseer Mehmood, by way of this further application seeks the same concession from this Court, in case F.I.R No.424 dated 28.05.2014, registered under sections 302/324/34 P.P.C. at Police Station Lakki Marwat.

2.Learned counsel for the petitioner argued that petitioner is charged for ineffective *M.Siraj P.S. D

firing while the role of effective firing has been attributed to co-accused, thus his common intention with other co-accused requires further inquiry into his guilt, as such, he is entitled to concession of bail.

3.Conversely, learned counsel for the complainant argued that petitioner is directly charged along with other co-accused for the occurrence in which one person has been done to death while the other severely injured; that it would be immaterial as to whose fire shot proved fatal because under section 34 P.P.C. when a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone; that punishment provided for the offence falls within the Prohibitory Clause of section 497 Cr.P.C. hence, petitioner is not entitled to concession of bail.

4.Learned A.A.G. adopted the arguments of learned counsel for the complainant.

5.Arguments heard and record perused.

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6.It appears from the F.I.R that

co-accused Hazrat Usman has been assigned the role of effective firing at the deceased Said Alam Khan while accused Gohar Ayub has been charged for attempting at the life of the complainant by firing at him effectively, but the role attributed to the present petitioner is that of ineffective firing at Mir Baz Khan, Muhammad Khan and Abdur Rahim. In the circumstances, vicarious liability/common intention of the petitioner with other co-accused, is yet to be determined by the trial Court, after recording evidence. It has been held by the apex Court in number of judgments that in case of ineffective firing, and on mere allegation of common intention, bail cannot be refused, because to judge common intention of an accused, further enquiry is required.

This view has also been expressed in Ghulam Dastagir’s case (2007 YLR 3297). So far as heinousness of the offence and capital punishment are concerned, the same would not be sufficient to refuse bail, when otherwise on merits, the accused *M.Siraj P.S. D

has made out a case of bail, because a mistaken relief of bail can be repaired by convicting the accused, if proved guilty, but no proper reparation can be offered for unjustified incarceration, albeit, his acquittal in the long run.

7.For the reasons above, this petition is allowed. Accused/petitioner is directed to be released on bail, provided he furnishes bail bonds in the sum of Rs.3,00,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate concerned. The sureties must be local, reliable and men of means.

Announced.

JUDGE

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