Dilawar Khan vs state

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc. BA No.206-B/2014 Date of hearing: 29.08.2014

Petitioner(s) : Dilawar Khan By Mr. Ahmad Farooq Khattak Advocate.

Respondent(s) : State by Qudrat Ullah, AAG, Respondent by Mr. Malik Akhtar Nawaz Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Petitioner Dilawar Khan, who is refused bail by two Courts below, through this further application, seeks concession of bail from this Court in case F.I.R No.282 dated 06.07.2014, registered U/S 324 P.P.C.

at Police Station Karak.

2.On 06.07.2014 at 1900 hours,

complainant Rehmat Ullah, in injured condition, reported to Yousaf Khan S.I., in emergency room of KDA hospital Karak that on the fateful day he took Ice to his house on motorbike of one Asim whereafter, he was on his way back on the said *M.Siraj P.S. D

motorbike and when reached the place of occurrence at 1815 hours, accused Dilawar Khan present there opened fire at him with intention to commit his Qatl-e-Amd, resultantly, he was hit on his left thigh and right knee. Motive behind the occurrence is stated to be an altercation inter-se the complainant and son of accused Dilawar Khan, namely, Naqebullah.

3.Learned counsel for the petitioner argued that petitioner is innocent and has been falsely implicated in the case; that complainant has not mentioned the kind of weapon in his report; that injuries on his person are simple and on non-vital part; that had the accused any intention to kill the him he would have selected his vital part; that neither any blood nor crime empties nor the motorcycle has been recovered from the spot; that similarly, the complainant has also not produced the motorcycle before the I.O. nor the I.O had bothered to took the same into possession; that site plan contradicts the version of complainant; that owner of the motorcycle has not been examined; that medico legal report contradicts the report of *M.Siraj P.S. D

complainant; that investigation is complete and petitioner is no more required to the police for further interrogation, therefore, all these circumstances, makes the case of the petitioner arguable for the purpose of bail.

4.Conversely, learned counsel for the complainant argued that what has been agitated by learned counsel for the petitioner amounts to deeper appreciation of evidence which is also deprecated at bail stage being the sole domain of the Trial Court. He went on to say that prime consideration for the Courts at bail stage is always to assess the prima facie connectivity of the accused with the offence on tentative assessment of record keeping in mind the peculiar circumstances of the case. He argued that petitioner is singularly charged in a promptly lodged report; that version of the complainant get support from medical evidence and other circumstances of the case, which prima facie connect him with commission of the offence, punishment of which does fall within the Restrictive Clause of section 497 Cr.P.C. hence, he is not entitled to concession of bail.

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

6.I have heard the arguments and

perused the record.

7.Admittedly, the complainant has sustained one injury on his left thigh and other on knee of right leg which is non-vital parts of the body and as per medico legal report these are simple in nature. The intention of the accused that when complainant was at his mercy, why he did not select his vital parts to do him away, is a question to be answered by the prosecution during trial. At the moment, intention of the accused and application of section 324 P.P.C., are the matters of further inquiry, which are yet to be determined by the learned Trial Court, after recording the evidence. Reliance placed on case titled, “Umar Hayat Vs The State and others” (2008 SCMR 1621), “Muhammad Altaf Khan and 2 others vs the State” (2011 P Cr. L J 1635) and “Khan Zada Vs the State” (2012 P Cr L J 1883). Similarly, none recovery of blood, crime empty and motorbike of the complainant is another circumstance which *M.Siraj P.S. D

makes the case of petitioner arguable for the purpose of bail. Investigation is complete and petitioner is no more required for further interrogation. In such circumstances, keeping him behind the bar would serve no useful purpose because it is settled law that bail may not be withheld as a punishment as mistaken relief of bail can be repaired by convicting the accused, if proved guilty, but no proper reparation can be offered for unjustified incarceration, albeit, his acquittal in the long run.

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

Accused/petitioner is directed to be released on 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 Illaqa/Judicial Magistrate concerned.

Announced.

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JUDGE

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