M.Munir vs M.Ishaq

2010 Y L R 1597

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

MUHAMMAD MUNIR---Petitioner

Versus

MUHAMMAD ISHAQ and another---Respondents

Cr. Miscellaneous.(B.A) No.1679 of 2009, decided on 6th November, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/148/149/427---Qatl-e-amd---Bail, grant of--- Further inquiry---No effective and specific role had been attributed to accused, persons, involvement of whom would be considered at the time of trial---Sole injury had been attributed to co-accused who was absconding---No material was on record against accused, persons, except the allegations made in the F.I.R.--Question of common intention of accused party would be determined at the time of trial---Case of accused appeared to be as that of further inquiry and he was entitled to the concession of bail under S.497(2), Cr.P.C.---Accused was released on bail, in circumstances.

Umar Hayat v. The State 2009 PCr.LJ 1058 ref

Khawaja Muhammad Khan for Petitioner.

Sahibzada Asadullah for Complainant.

Bilal ud Din for the State.

Date of hearing: 6th November, 2009.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The deceased, then injured, reported the matter to the police in RHC Wari that had laid pipe for his house when at 17-30 hours, the present accused along with four others armed with fire-arms came there, directed him to remove the said pipe and at the same time started firing at him and he was injured on his right arm with firing of Muhammad Zaman co-accused. The occurrence was also witnessed by Mubarak Zeb, Maana Dar and Suleman. The complainant then succumbed to the injuries at 00-15 hours on 1-9-2009. The accused petitioner was arrested on 19-9-2009. He applied for concession of bail which was refused by the lower forums, so the present application.

2.The learned counsel appearing on behalf of the accused petitioner submitted that no specific role has been attributed to the present accused petitioner and he has only been charged for ineffective firing. The site plan reflects that the alleged occurrence took place within the village and the house of the complainant was surrounded by different houses and the occurrence as reflected through the site plan makes it impossible for all the accused to fire at the complainant. He further submitted that the accused is a, teacher in the Government school and he had gone to collect the salaries for the employees of the school and he was not present in the village.

3.On the other hand, learned counsel appearing on behalf of the complainant vehemently argued that the accused petitioner is directly charged for commission of offence. There is ocular account of the occurrence and all the accused with their common intention had made firing on the complainant as well as on his house and recovery of empties from the spot reflects the intention of the accused party. The rest of the accused are still absconding and have not surrendered before the Court. Accused petitioner after commission of the offence remained absconder for so many days. So in the circumstances, the accused petitioner is not entitled to the concession of bail and put reliance on case of Umar Hayat v. The State 2009 PCr.LJ 1058.

4.After perusal of the record and without going into the deep merits of the case, it reveals that no effective and specific role has been attributed to the accused petitioner and involvement of whom would be considered at the time of trial. The sole injury has been attributed to Muhammad Zaman co-accused who is still absconding. There is no material against the accused petitioner except the allegations made in the F.I.R. The question of common intention of the accused party would be determined at the time of trial. The case law ibid referred to by the counsel for the complainant is of no help to him at this stage. So, in the circumstances of the case, the case of the accused petitioner appears to be as that of further inquiry and he is entitled to the concession of bail under section 497(2), Cr.P.C.

5.So, for the reasons recorded above, this petition for bail is allowed and the petitioner shall be released on bail if he furnishes bail bond in the sum of Rs.200,000 (Rupees two lacs) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/ Magistrate on Duty.

6.However, being tentative assessment in the case, this may not prejudice the mind of the trial Court.

H.B.T./90/P Bail granted.