Saeed Anees vs State

2014 Y L R 736

[Peshawar]

Before Assadullah Khan Chamkani, J

SAEED ANEES---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.281-P of 2013, decided on 26th March, 2013.

(a)Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, grant of---Further inquiry---Accused was implicated in the present case after his mobile phone calls were traced--- Questions as to whether complainant was the eye-witness of the occurrence; whether the occurrence had been witnessed by anyone; whether statements of any private witnesses under Ss. 161 and 164, Cr.P.C. had been recorded; whether empties recovered from the spot matched with the weapon recovered from the accused; whether there was any motive; whether the complainant charged the accused after his satisfaction or at the instance of the police, and whether there were some other allegations against the accused except for mobile phone calls, were questions calling for further inquiry---Accused was granted bail in circumstances.

(b)Criminal Procedure Code (V of 1898)---

----S. 497(2)---Bail---Case of further inquiry---Normal practice of courts in granting/refusing bail---When an accused became entitled to bail as of right under S.497(2), Cr.P.C., then the same could not be withheld on the ground of normal practice of the court, because the latter was relatable to exercise of discretion while the former was relatable to the exercise and grant of a right.

Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 rel.

Naeem Khan for Petitioner.

Sabzada Assadullah for the Complainant.

Muhammad Imran for the State.

Date of hearing: 26th March, 2013.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Saeed Anees, petitioner herein, who is charged in a case registered against him under section 302, P.P.C., vide F.I.R. No.1182, dated 27-9-2012 in Police Station Swabi, sought his release on bail mainly on the grounds that it is an unseen occurrence; that there is no ocular as well as circumstantial evidence to connect him with the commission of alleged offence; that he has been involved in the instant case merely on mala fide intention because he wasn't charged in the first information report rather he was nominated in the case by the complainant party after the delay of about eight days of the occurrence; that the present case against him is afterthought and due deliberation; that though the complainant charged him in his magisterial statement but that has been done at the instance of the police; that SIM, on which, the prosecution story is based on, hasn't been confirmed from the concerned company, which, under the Qanun-e-Shahadat Order, 1984, is not believable; that though the pistol has been recovered from the petitioner but the Firearms Expert report in this regard is negative and that the circumstances of the case call for further inquiry.

2.As against that the learned counsel appearing on behalf of the State duly assisted by the learned counsel for the complainant party argued that the petitioner has been charged by the complainant in his magisterial statement and involved in the instant case after tracing his mobile calls, therefore, he being, prima facie, connected with a crime, attracting the prohibitory clause, doesn't deserve the concession of bail at this stage, that too, when there is nothing on the record to show that the charge against him has been made on the basis of some ill-will or animus. The moreso when, the trial in the instant case has already been commenced and two witnesses have been examined.

3.I have gone through the record carefully and considered the submission made by the learned counsel for the parties.

4.Whether the complainant is the eye-witness of the present occurrence; whether the occurrence has been witnessed by anyone; whether statements of any private witnesses under sections 161 and 164 of the Cr.P.C. have been recorded; whether the empties recovered from the spot, matched with the pistol, which was later on allegedly recovered from the possession of the petitioner; whether there was any motive; whether the complainant charged the petitioner after his satisfaction or nominated him at the instance of the police and whether there are some other allegations against the petitioner except mobile calls, are the questions, calling for further

inquiry. Yes, the trial has been commenced and the grant of bail at this stage would prejudice the prosecution case. I am unable to agree that if the petitioner is otherwise entitled to bail, then the factum of commencement of trial would not constitute any legal bar to the grant of bail. Even otherwise, when the Court is fully satisfied that the case of the petitioner requires further probe as covered by section 497(2) of the Cr.P.C., then he shall become entitled as of right to bail. The question then arises that whether sub-section (2) of section 497 of the Cr.P.C. would have operation, notwithstanding, the normal practice of the superior Courts, when an accused becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. the same cannot be withheld on the ground of practice, because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right. Reference can well be made in this regard on the judgment, reported in the case of Muhammad Ismail v. Muhammad Rafique (PLD

1989 SC 585).

5.For the reasons discussed above, this petition is allowed and it is directed that the petitioner be released on bail, provided he furnishes bail bonds in the sum of Rs.3,00,000 (Rupees three lacs) with two sureties, each in the like amount to the satisfaction of the learned trial Court, who is to ensure that the sureties are local, reliable and men of means.

MWA/292/P Bail granted.