Mazhar etc vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.Misc.BA No.1360-P/2014

Date of hearing: 13.10.2014

Petitioner (s) :Mazhar etdc by Muhammad Arif Khan, Advocate.

Respondent(s) :State by Gul Daraz Khan, Advocate for State by Syed Waqar Ali Shah, Advocate for complainant.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Petitioners (1) Mazhar and (2) Manzar seeks bail in case FIR No.490 dated 01.08.2014, registered U/Ss 302/449/203/109/311/148/149 PPC, at Police Station Kalu Khan District Swabi.

2.At the very outset, learned counsel for the complainant/respondent stated at the bar that due to compromise with the petitioners, complainant is not going to charge them and has no objection on their release on bail.

3.Arguments of learned counsel for the petitioners and learned A.A.G. for the State heard and record perused.

4.It appears from the record that both the accused/petitioners have not been named in the FIR.

*M.Siraj Afridi P.S. D

Rather accused Mst. Hina and two unknown culprits have been directly charged therein by Akbar Ali complainant for commission of the offence by alleging that on 01.08.2014, on receipt of information about murder of his mother Mst. Lal Baha, nephew Aleem Zada and niece Mst. Fariza, he rushed the crime house and found them murdered with firearms. On next day of the incident i.e.

02.08.2014, one Mst. Neghat recorded her statement under section 164 Cr.P.C. wherein she charged accused/petitioners for commission of the offence, at the instigation of co-accused Qurban Ali and Mst. Hina. Admittedly, the occurrence is nocturnal. Neither complainant Akbar Ali nor Mst.

Neghat are the eyewitnesses of the incident nor has anybody else come forward to furnish the ocular account of the incident. Both, complainant and Mst.

Neghat have advanced two different motives of the incident. Similarly, one has charged three while the other four accused for murders of the deceased.

Mst. Neghat has not disclosed the source of her *M.Siraj Afridi P.S. D

satisfaction about complicity of the

accused/petitioners in the commission of offence.

The petitioners have not confessed their guilt before the competent court of law nor anything incriminating has been recovered either from their direct or indirect possession. The recovered 4 crime empties of 7.62 bore and 2 empties of 30 bore pistol have not been sent to the FSL for analysis so as to determine the number of the accused. In light of report of the complainant and statement of Mst.

Neghat recorded under section 164 Cr.P.C., there are two versions regarding the same incident, which one is correct, is yet to be determined during trial after recording evidence. However, at the moment, on tentative assessment of the material available on record, reasonable ground exist which makes the case of the accused/petitioners that of further inquiry into their guilt. So far as the argument of learned A.A.G. that offence is heinous in nature because three persons have done to death, it is settled law that bail may not be refused merely on *M.Siraj Afridi P.S. D

the ground of heinousness of the offence, nor the same can be withheld as a punishment, when otherwise, the accused is found entitled for concession 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 to an accused for unjustified incarceration, albeit, his acquittal in the long run.

5.In view of the above, I am inclined to exercise the discretion of bail in favour of the petitioner. Resultantly, this petition is allowed.

6.These are reasons of my short order of even date, which is reproduced below:- “For reasons to be recorded later, this petition is allowed. Petitioners (1) Mazhar and (2) Manzar are admitted to bail in case FIR No.490 dated 01.08.2014, registered under sections 302/449/203/109/311/148/149 PPC at Police Station Kalu Khan, District Swabi, provided each one of them furnishes bail bonds in the sum of Rs.3,00,000/- with two sureties each in the like amount to the satisfaction of *M.Siraj Afridi P.S. D

Illaqa Judicial Magistrate/MOD, concerned.

Announced.

JUDGE

*M.Siraj Afridi P.S. D

*M.Siraj Afridi P.S. D