Fazal Amin vs Shahid Zaman

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.Misc.BA No.1332-P/2014 Date of hearing: 15.09.2014

Petitioner (s) : Fazal Amin by Mr. Zar Badshah, Advocate.

Respondent(s) : State by Mehwish Mukhtiar Advocate and complainant by Mr. Muhammad Saeed Khan, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Petitioner Fazal Amin alias Toray, seeks bail in case FIR No.566 dated 09.12.2013, registered under sections 302/ 109/34 PPC, registered at Police Station Shehbaz Garh, District Mardan.

2.The prosecution case is that on 09.12.2013, on receipt of information by Kishwar Khan ASI qua dead body of a person lying under a bridge in a water channel, near Patrol Pump Bala Garhi, he along with other police officials rushed *M.Siraj Afridi P.S. D

there, where Shahid Zaman reported him that some 18/19 prior, his brother Akhtar Zaman went missing qua which, a report was lodged; that today he found his dead body in a water channel being strangulated by some unknown culprit/culprits. Later on, on 17.12.2013, he recorded his statement under section 164 Cr.P.C. wherein he charged accused/petitioner along with his co-accused.

Hence, this case.

3.Learned counsel for the petitioner argued that no body is charged in First Information Report for the occurrence; that in his delayed statement under section 164 Cr.P.C. complainant has not furnished the source of his satisfaction qua involvement of the petitioner in commission of the offence; that it is an unseen occurrence and the petitioner has been charged on mere suspicions;

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that co-accused whose role is no more distinguishable from that of the petitioner have already been released on bail by the competent court of law, therefore, on the principle of consistency, petitioner is also entitled to concession of bail.

5.Conversely, learned counsel for the complainant contended that it was the bona fide of the complainant that he did not charge any innocent person in his initial report and when he got satisfied about the culprits, he charged them in his statement under section 164 Cr.P.C; that petitioner has made pointation of the crime spot; that a piece of string, chappal/shoes of the deceased has also been recovered on his pointation; that trial has commenced and some of the PWs have also been examined, therefore, in the circumstances, *M.Siraj Afridi P.S. D

petitioner who is prima facie connected with the commission of offence punishment of which falls within the Prohibitory Clause of section 497 Cr.P.C., is not entitled to concession of bail.

5.Arguments heard and record perused.

6.Admittedly, petitioner is not charged in the FIR. No one has come forward to furnish the ocular account of the incident. Complainant in his statement recorded under section 164 Cr.P.C. on 17.12.2013 i.e. after a delay of eight days of the occurrence, has not furnished the source of his information and satisfaction qua complicity of the petitioner in the commission of offence. Though, on the joint pointation of the petitioner and co-accused Faizullah, pointation memo of the crime venue has been prepared wherefrom allegedly a piece of string and Chappal have also been taken into possession, *M.Siraj Afridi P.S. D

but evidentiary value of the joint pointation is yet to be determined by the trial court. Similarly, no identification parade has been conducted about chappal of the deceased, therefore, evidentiary value of this piece of evidence is also yet to be determined. On tentative assessment of the material available on record, sufficient grounds exist which makes the case of the petitioner arguable for the purpose of bail. Moreso, co-accused Faizullah whose role is identical to that of the petitioner and other co-accused, have already been released on bail, so on the rule of consistency, petitioner is also entitled to concession of bail. In light of the dictum laid down by the apex court in case titled, “Nisar Ahmad Vs the State and others” (2014 SCMR 27), commencement of trial may not debar an accused *M.Siraj Afridi P.S. D

from bail at any stage, who has made out a case of further enquiry.

7.In view of the above, this petition is allowed. Accused/petitioner is admitted to 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 learned Illaqa Judicial Magistrate/MOD, concerned. The sureties must be local, reliable and men of means.

Announced.

JUDGE

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