Rafi Ullah vs State

2012 Y L R 1189

[Peshawar]

Before Qaiser Rashid Khan, J

RAFI ULLAH---Petitioner

Versus

THE STATE and another---Respondents

Bail Petition No.4-D of 2011, decided on 27th January, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 148 & 149---Attempt to commit qatl-e-amd, rioting armed with deadly weapons---Bail, grant of---Further inquiry---Contention of injured- complainant that while he was irrigating his fields, accused along with his co-accused simultaneously fired at him, injuring his right leg, and the motive of the offence was a previous quarrel between the parties---Validity---Complainant had charged five persons for sustaining a single injury on a non-vital part of his body---Although complainant had levelled the charge of effective firing against the five accused named in the F.I.R., but no specific role had been assigned to anyone---No empties were recovered from the spot and complainant was allegedly at the total mercy of the accused persons, but despite that there was no repetition of fire shots, which cast doubt on their intention to commit qatl-e-amd of the complainant---Motive of the incident was also not satisfactorily explained---Medical report of the complainant was not in consonance with the version of the prosecution---Case of accused called for further inquiry into his guilt---Bail application of accused was accepted and he was admitted to bail.

Muhammad Yousaf Khan for Petitioner.

Qudratullah Khan for the State.

Sh. Iftikharul Haq for the Complainant.

Date of hearing: 27th January, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Having failed to get the concession of bail from the leatned lower fora, Rafiullah, accused/petitioner, has now filed this application for his release on bail in case F.I.R. No.170 dated 15-7-2011 of Police Station Mullazai registered under sections

324/148/149. P.P.C.

2.According to the F.I.R. lodged by the complainant Painda Khan in injured condition in the emergency of Civil Hospital Tank, he was irrigating his field at 1600 hours situated within the limits of Umer Khel when in the meanwhile Mir Badshah, Khaliq, Dilawar armed with 3x3 rifles and Yamin, and Rafique, armed with Kalashnikovs came and directed him to stand up and simultaneously all of them fired at him with which he was hit on his right leg, whereafter, all the accused fled away from the spot. Motive for the offence was given to be previous quarrel between the parties.

3.Learned counsel for the petitioner vehemently argued that the charge against the petitioner is patently false and mala fide. He contended that no recovery of any incriminating material has been made from the accused/petitioner. His submission was that no specific role has been attributed to the petitioner. He urged that the complainant had thrown the net too wide because for a single injury, he has charged five persons. He argued that the injury sustained by the victim/complainant is on non-vital part of his body. He lastly contended that the Medico-legal Report of the complainant is also not in conformity with the prosecution version.

4.On the other hand, the learned counsel representing the State assisted by the learned counsel for the complainant strongly resisted the grant of bail to the petitioner on the grounds that he is directly charged by the complainant for effectively firing at him; the occurrence has taken in broad-daylight and thus the question of mistaken identity or substitution of real culprit does not arise; that the charge is backed by a motive and that the accused/ petitioner is vicariously liable for the offence.

5.I have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the parties.

6.Admittedly, the complainant has thrown the net wide by charging five persons for sustaining a single injury on non-vital part of his body. Though the complainant has levelled the charge of effective firing against the five accused named in the F.I.R., but no specific role has been assigned to anyone. Though firing has simultaneously been attributed to five accused, but no empties have been recovered from the spot which makes the case one of further probe.

7.Even otherwise, the complainant being totally at the mercy of the five accused, but still there was no repetition of fire shots thereby casting doubts on their intention to cause Qatl-e-Amd of the complainant within the meaning of section 324, P.P.C. The motive part of the incident is also not satisfactorily explained and so is the Medico-legal Report of the complainant which too, is not in consonance with the version of the prosecution.

8.Therefore, tentative assessment of the materials so far brought on record, prima facie, brings the case of the accused/ petitioner within the ambit of further inquiry entitling him to the concession of bail.

9.The application is accordingly accepted and the accused/petitioner is admitted to bail in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.

10.Above are the reasons for my short order of even date. However, the observations made in this order are tentative in nature and should, in no way, prejudice the proceedings before the trial court during trial of the case.

M.W.A./58/P Bail granted.