Fakhar-e-Alam vs State etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr. M No. 304-A of 2014

JUDGMENT

Date of hearing............16.07.2014...........................

Petitioner..................................... Fakhr-E-Alam ......................

Respondent.........The State ................................................................

MRS. IRSHAD QAISER, J:- The learned

Judicial Magistrate, Kohistan vide order

dated 15.05.2014 and learned Sessions

Judge Kohistan vide order dated

09.06.2014 had refused bail to the

accused/petitioners in case FIR No.30

dated 25.04.2013 under Sections

302/324/506/148/149 PPC at Police

Station Sazeen Kohistan and now through

the present application they seek bail from

this Court on the grounds that there is nothing on record to connect the petitioners with the crime. No active role has been attributed to the

accused/petitioners. There is delay of lodging the FIR but the delay has not been explained. The complainant is not the eye witness of the occurrence and there is nothing on record that how he has been informed.

Since there is blood feud enmity between the parties and the other alleged eye witnesses are the relatives of the deceased party, therefore, they have falsely charged the accused due to enmity. There is malafide on the part of complainant party to falsely charge all the family members of the accused. The alleged occurrence took place after the ‘Isha’ prayer and it was dark hours of night. Thus the question of identification does not arise.

The petitioners were juvenile and less than 18 years, therefore, they are entitled to bail. These arguments were denied by

complainant counsel assisted by the learned State counsel and contended that complainant has explained the delay.

Accused/petitioners along with others are directly charged in FIR for committing the murder of Barkat-Ullah and attempting at the lives of PWs. The eye witnesses had identified the accused on the spot. It is further contended petitioners are not juvenile. They have never raised this contention before the lower Courts. They remained absconders for sufficient time.

The petitioners are found to be members of unlawful assembly sharing common object with others alleging to have caused death of innocent person. They are vicariously responsible for major offences and their case is covered by Section 497

(1)Cr.PC.

2.I have heard learned counsels for the parties and perused the available record with their assistance.

3.In the present case the

accused/petitioners are directly charged in the FIR. Not only sufficient ocular evidence is available in support of prosecution but same was also supported by other circumstantial and medical evidence.

Deceased had received multiple fire arm injuries and empties were recovered from the spot. It is settled law that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deducted from the decision of any particular case.

Be that as may, the facts of the prosecution case is that seven persons are accused of offences under Section 302/324/148/149 PPC for having formed an unlawful assembly which armed with deadly weapons in pursuance of the common object thereof, caused the death of deceased. As defined in Section 141 PPC an assembly of five or more persons is

designated as an unlawful assembly if the common object of the persons composing it, inter-alia is to commit any mischief or criminal trespass or other offences. There are other provisions such as Section 34, 109 and 120-B PCC which envisage the rule of constructive liability. The multiple injuries on the person of deceased did not appear to be the act of single person. On the basis of the material in the shape of FIR, statements recorded under Section 161 Cr.PC and other circumstantial evidence, there are sufficient grounds to connect the petitioners with alleged crime and it can be considered even at bail stage. In this respect reference is made to PLD 1972 SC 81 wherein it is held;

“It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. Bail in non bail-able cases is a matter within the discretion of the Courts,

which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exists, to connect he accused person with the crime alleged against him. The Courts belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. It is important to remember that bail is not to be with held as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration

of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.”

Reference is also may be made to

1978 SC 236.

4.According to the record accused remained absconders for sufficient long time despite proceedings under Sections 204 and 87 Cr.PC. For the first time petitioners also seek their release on bail on the ground of age. They contended that the accused/petitioners are juvenile and less than 18 years. They have not raised this ground before the lower Courts.

Reference is made to 1996 SCMR 927.

According to the card of arrest and medical report they are not less than 18 years. The other accused are still at large. The investigation in the case is complete and

challan is put in Court for trial of the accused. In the circumstances narrated above, this application is without merit and is hereby rejected.

Announced. JUDGE