Haroon Shah vs State

2011 P Cr. L J 210

[Peshawar]

Be f or e Mazhar Alam Khan Miankhel, J

HAROON SHAH and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1353 of 2010, decided on 18th October, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860, Ss.302/148/149---Qatl-e-amd---Bail, grant of--- Further inquiry---Nothing was available in shape of direct or circumstantial e v i d e n c e against accused persons which could s uffi ci e ntl y connect them with the commission of offence---Earlier, deceased and lady were produced before Judicial Magistrate where both categorically submitted that they being sui juris had contracted a valid marriage; and the lady refused to seek protection in "Darul Aman" and they were released by the Magistrate---Only piece of evidence was last seen evidence to the e f f e c t that d e c e a s e d and lady were seen in the company of accused persons---Nothing else was available which could suggest involvement of accused persons in the case---No doubt brutal murder of a young man took place and the dead body of the same was recovered from Tribal territory, but no one could be held responsible for said brutal murder on mere presumption, unless there was some convincing, direct and circumstantial evidence prima facie connecting accused with commission of offence---In absence of any convincing evidence, a wide net could not be thrown against the entire family of accused-Involvement of accused in the commission of offence would only depend upon further investigation and recording of evidence by the Trial Court during the trial, which had made case as that of further inquiry and arguable for the purpose of bail---Accused were released on bail, in circumstances.

Abdul Latif Afridi and Syed Fayaz Banari for Petitioners.

Amirullah Khan for the State.

Date of hearing: 18th October, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---After refusal of bail by the lower forums, the petitioners herein being accused in case F.I.R. No. 376 dated 21-7-2010 Police Station Michni Gate, Peshawar registered under sections 302/148/149, P.P.C. seek their release on bail as they being innocent have falsely been implicated in a case of no evidence as there is neither ocular nor circumstantial evidence available on the record connecting the accused petitioners with the commission of offence; the only last seen evidence which too according to law is the weakest type of evidence alone is not sufficient to connect the petitioner with the commission of offence. The father of the deceased whose statement was recorded under section 164, Cr.P.C. and then investigation of the case made in the light of that very statement (which has also been reproduced in the F.I.R.) does not charge the accused petitioners.

2.The learned counsel appearing on behalf of the State supported, the case of the prosecution by submitting that the petitioners were the persons who brought the deceased along with Minhaj Bibi from Sahiwal and then the murder of the deceased was also conveyed to the family of the deceased by the petitioners family which on the face of it reflects their involvement in a heinous crime of murder which alone disentitles them for their release on bail.

3.The father of the deceased namely Ihsanullah present in Court submitted at the Bar that he would not like to hire the services of a lawyer to represent his version and expressed his confidence and trust on the submissions made by the learned counsel for the State.

4.Learned counsel for the parties were heard and record of the case perused. The same would reveal that the accused petitioners have been booked in case F.I.R. ibid. The entire record of the case if tentatively gone through would reveal that there is nothing in the shape of direct or circumstantial evidence against the accused petitioners which could sufficiently connect them with the commission of offence. The deceased and Mst. Minhaj Bibi were produced before a judicial Magistrate in Sahiwal where both categorically submitted that being sui juris they have contracted a valid marriage and the lady refused to seek protection in `Darul Aman' and they were released by the Magistrate. Mumtaz Chowkidar with whom both the deceased and the lady were residing in Sahiwal stated in his statement recorded under section 161, Cr.P.C. that after release by the Magistrate in Sahiwal, both of them were taken by the present petitioners in their car. The entire file of the case suggests that this is the only piece of last seen evidence that the deceased and the lady were seen in the company of the accused petitioners by the said Mumtaz Chowkidar. Nothing else is available which could suggest their involvement in the case.

5.No doubt, that brutal murder of young man (as record is silent with regard to the lady) took place and the dead body of the same was recovered from tribal territory but no one can be held responsible for said brutal murder on mere presumption unless there is some convincing, direct and circumstantial evidence prima facie connecting the accused petitioner with the commission of offence. In absence of any convincing evidence, a wide net cannot be thrown against the entire family of the accused petitioner. Being aware of the fact that this being a bail petition and deep appreciation of the merits of the case while considering bail petition is not permissible and only tentative view of the record regarding involvement of an accused has to be taken but in a case of the nature requires this much plunge into the merits of the case to decide a bail application. This Court on such analogy comes to the conclusion that the involvement of the accused petitioner in the commission of offence would only depend upon further investigation and recording of

evidence by the trial Court during the trial which makes their case as that of further inquiry and arguable for the purpose of bail.

6.Hence, in this view of the matter, having no option but to allow this petition and direct the release of the petitioners on bail on their furnishing bail bonds in the sum of Rs.500,000 (Rupees five lac) each, with two sureties, each in the like amount, to the satisfaction of the Illaqa Judicial Magistrate/Magistrate on duty. The sureties shall be reliable and men of means.

These are the reasons for short order dated 18-10-2010.

Criminal Miscellaneous No. 1445 of 2010

Through this Criminal Miscellaneous the applicant/petitioner No.1 in Criminal Miscellaneous Bail Application No. 1353 of 2010 seeks correction of his name as inadvertently his name was written as Haroon Shah instead of Haroon-ur-Rasheed in the bail petition.

So, the name of the applicant/petitioner No.1 appearing in the Criminal Miscellaneous No. 1353 of 2010 be read as 'Haroon-ur-Rasheed instead of Haroon Shah. Hence, this Criminal Miscellaneous is disposed of accordingly.

H.B.T./352/P Bail granted.