Muhammad Akram etc vs State etc

2014 M L D 127

[Peshawar]

Before Assadullah Khan Chamkani, J

MUHAMMAD AKRAM alias MUHAMMAD IKRAM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No.276-M of 2013, decided on 30th July, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 452 & 34---Qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Bail, grant of---Further inquiry---Accused persons were charged by name in the F.I.R., but with no specific role--- Occurrence took place at night time, and no direct evidence of murder of the deceased, was available on record---Recovery of two empties of .30 bore, and a charger containing six rounds of same bore, was effected from the place of occurrence after sixteen days of the occurrence; particularly, when the first Investigating Officer failed to secure them at first instance at the time of a spot inspection---Question of its concoction or otherwise, was to be resolved at the time of trial after recording statements of the prosecution witnesses---Bail was to be granted as a matter of right and not by way of any concession or grace in case of further inquiry---Life and liberty of a citizen was very precious and granted by Art.4 of the Constitution---Deeper appreciation of evidence and circumstances appearing in the case, were not permitted at bail stage; only tentative assessment was to be made---Where accused, would satisfy the court that reasonable grounds were available to believe that he was not guilty of such offence, then the court must release accused on bail---Accused was granted bail.

PLD 1989 SC 585; Munir v. The State 2002 MLD 712 and Yar Muhammad v. The State and another 2004 YLR 2230 rel.

Muhammad Saleem Mardak for Petitioners.

M. Raziq and Aziz Muhammad for the State/Respondents.

Date of hearing: 30th July, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Muhammad Akram alias Muhammad Ikram and Anwar Ullah alias Muhammad Anwar have applied for bail after they failed to secure the relief from the Courts below being involved in case F.I.R. No. 33 dated 30-4-2013 registered under sections 302/452/34 P.P.C. at Police Station, Allah Dhand, District Malakand.

2.Facts of the case are that Major Dilnawaz Khan along with his relatives Asmat Ali, Atta ur Rehman etc. informed the levy police of Police Station, Allah Dhand that his brother in law, namely, Amjad Ali on his cell phone informed him that Mst. Noreen called him to her house and intended to kill him with the help of other persons. After recording such information in DD No.13 dated 30-4-2013, the levy police visited the house of Mst. Noreen, where they found the dead body of deceased Amjad Ali. The complainant in his report charged Muhammad Ikram, Muhammad Anwar and Mst. Noreen for the murder of his brother in law, however, disclosed no motive in his report, as such, the above referred F.I.R. was registered.

3.Learned counsel for the petitioners has contended that the case against the petitioners is false and concocted one; that it is an unseen occurrence in which the petitioners have been falsely implicated on the basis of suspicion because the dead body of deceased was found inside the room of lady accused Mst. Noreen, who is still at large, at night time, particularly, when no motive has been disclosed and it also seems to be the act of single person; that though the petitioners are charged in the F.I.R. but with no specific role and that petitioner Muhammad Ikram is very old and having infirm physic, therefore, he was not in a position to commit such like offence; that the prosecution shown recovery of two empties of 30 bore and a charger containing six rounds along with pistol as weapon of offence, but the same has been planted against them, therefore, the question of petitioners' guilt would require further enquiry entitling them to the grant of bail.

4.Neither D.A.G. nor State counsel is in attendance, however, learned counsel for the complainant is present, who opposed the bail petition by submitting that petitioners are specifically named in the F.I.R supported by the medical report as well as recovery of empties of .30 bore from the spot, a 30 bore pistol as weapon of offence and positive FSL result. Further argued that the offence also falls within the prohibitory clause of section 497 Cr.P.C; that the F.I.R. was lodged promptly and there is no reason as to why the petitioners should be falsely implicated. It was lastly submitted that charge has been framed and the trial has been commenced, therefore, at this stage, the petitioners are not entitled to the concession of bail.

5.I have considered the arguments of learned counsel for the parties and have gone the record.

6.No doubt, the petitioners are charged by name in the F.I.R. but with no specific role. Admittedly, the occurrence took place at night time and no direct evidence of murder of the deceased Amjad Ali is available on record. So far as the recovery of two empties of .30 bore from the place of occurrence and a charger containing six rounds of same bore are concerned, it has been effected after sixteen days of the occurrence, particularly, when the first Investigating Officer failed to secure them at first instance on 30-4-2013 at the time of spot inspection, therefore, the questions of its concoction or otherwise is to be resolved at the time of trial after recording statements of the prosecution witnesses.

7.So far as commencing of trial is concerned, no doubt, practice of this Court remains that after commencement of trial normally bail is not granted. It is settled law that in case of further inquiry, bail is to be granted as a matter of right and not by way of any concession or grace. Life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. This issue has also been settled down by the Hon'able Supreme Court of Pakistan in the case reported in (PLD 1989 SC 585). Wisdom is also sought from the case titled "Munir v. The State (2002 MLD 712 (Lahore)" wherein it has been held that bail sometimes was refused to an accused on the consideration of commencement of a trial, but that consideration was to be based purely upon propriety. Whenever a question of propriety was confronted with a question of right, the latter must prevail and commencement of a trial would pose no insurmountable hurdle in the way of bail when the accused was succeeded in making out a case of further inquiry.

8.At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail. Wisdom is sought from the case titled Yar Muhammad v. The State and another reported in 2004 YLR 2230. On tentative assessment of the case, the case of the accused/ petitioners is one of further inquiry.

So, keeping in view the above facts and circumstances of the case, this bail applications is allowed and the petitioners be released on bail in case they furnish bail bonds in the sum of Rs.3,00,000 (three lac)with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.

It would be relevant to mention that the observations made while deciding instant petition shall not have effect to the mind of learned trial Court at the time of final decision of the case.

HBT/474/P Bail granted.