Rizwanullah vs State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc.BA No.205-B/2014 Date of hearing: 19.08.2014

Petitioner(s) : Rizwan Ullah & Wali Ullah by Mr. Wali Ayaz Khan Advocate.

Respondent(s) :State by Mr. Qudrat Ullah, A.A.G. Respondent by Mr. Faqir Mehboob-ul-Hameed, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Petitioner

(1)Rizwan Ullah and (2) Wali Ullah, seek bail in case F.I.R No.124 dated 06.04.2014, registered under sections 302/324/34 P.P.C. at Police Station Tajori, District Lakki Marwat.

2.Allegations against the petitioners are that on 06.04.2014 at 1200 hours, they while duly armed with Kalashnikovs came to the crime scene *M.Siraj P.S. D

i.e. in front of BHU Adamzai, on a motorbike and committed Qatl-e-Amd of Hazrat Umar and attempted at the life of Hikmat Ullah but he luckily escaped unhurt. Hence, this case.

3.Learned counsel for the petitioners argued that charge has been exaggerated as two accused are charged for indiscriminate firing at the deceased whereas the deceased has received a single injury which has not been attributed to any of the two accused; that as evident from report of complainant deceased Hazrat Umar was not the target of the accused, rather it was Hikmatullah with whom they had motive, so why he was let off, is a question which requires further probe. He argued that it does not appeal to a prudent mind that when one of the accused could easily fired at his target then what was the circumstance which compelled *M.Siraj P.S. D

the accused to first stop and park the motorbike and then both opened fire at the deceased and then after covering little distance abandoned the motorbike which was a strong source to help them in their escape from the spot; that no crime empty has been recovered from the spot; that there was no motive between the accused and the deceased; that both the petitioners are juvenile and petitioner Rizwan Ullah Khan is the student Ist year in Government Degree College Tajori Lakki Marwat and his date of birth is 07.08.1997, whereas petitioner Wali Muhammad is student of class 8th in Government High School Adam Zai and his date of birth is 01.01.200; that according to complainant the deceased died on the spot whereas time between injury and death has been mentioned by medical officer as “within one hours” which does not support *M.Siraj P.S. D

the prosecution version. He went on to say that on tentative assessment of the record reasonable grounds exist which makes the case of petitioners that of further inquiry and in the circumstances keeping them behind the bar would serve no useful purpose for the prosecution rather it would destroy their future educational career.

4.As against that learned counsel for the complainant argued that both the petitioners are directly charged in a promptly lodged report by complainant who is an eyewitness of the occurrence;

that blood has been secured from the place of the deceased; that mere non-attribution of the fatal shot to any of the accused and non-recovery of empties could not be made basis for bail as it would be deeper appreciation of evidence, which is always deprecated at bail stage. He argued that mere *M.Siraj P.S. D

tender age of the petitioners cannot be the sole ground for bail, when otherwise they are prima facie connected with the offence, because it would amount to give a license to juvenile for committing such like heinous offences; that tentative assessment of material available on record, prima facie connect the petitioners with commissions of offence, which entails capital punishment, falling within the Prohibitory Clause of section 497 Cr.P.C.

hence, they are not entitled to concession of bail.

5.Learned A.A.G. adopted the arguments of learned counsel for complainant and strongly opposed the grant of bail.

6.I have heard the arguments and

perused the record.

7.In First Information Report general role of indiscriminate firing has been attributed to both the *M.Siraj P.S. D

petitioners with Kalashnikovs, without specification of fatal shot to any of them whereas the deceased as received a single shot. Despite indiscriminate firing, no crime empties has been recovered from the spot and it is yet to be determined during trial after recording evidence as to whether it was doing of a one or more than one persons. Similarly, whose fire shot, out of the two, proved fatal, would be a begging question to be answered by the prosecution during trial. Moreover, question of common intention is a state of mind of an accused, which cannot be determined without recording evidence, At the moment on tentative assessment of material available on record, participation of the accused- petitioners in the commission of crime, requires further probe. Original academic certificates of both the petitioners were produced for perusal of the *M.Siraj P.S. D

Court, according to which both are juvenile and students. The petitioners are child within the meaning of provisions of Juvenile Justice System Ordinance, 2000 and they are in jail since their arrest and till yet trial has not commenced. Investigation in the case is complete and petitioners are no more required for the purpose of interrogation. Keeping in view the peculiar facts and circumstances of the case, keeping the petitioners behind the bar would serve no fruitful purpose rather it would destroy their future education career. Reliance place on case titled, “Muhammad Ramzan Vs the State” (2008 YLR 723). Moreover, it is settled law that bail may not be refused merely on the ground that accused is directly charged in the F.I.R for a heinous offence, when otherwise, he is found entitled for concession of bail because any mistaken relief of bail, can be *M.Siraj P.S. D

repaired by convicting the accused, if proved guilty at the trial, but no proper reparation can be offered for his unjustified incarceration, albeit, his acquittal in the long run.

8.Resultantly, this petition is allowed.

Accused/petitioners are admitted to bail 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 Illaqa/Judicial Magistrate concerned.

Announced.

JUDGE

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