Sheraz vs State

2014 Y L R 1044

[Peshawar]

Before Muhammad Daud Khan, J

SHERAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No.551-M and Criminal Miscellaneous Bail C.A. No.67-M of 2013, decided on 23rd December, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Bail, refusal of---Accused persons had been directly charged in the F.I.R. with specific role of firing at the complainant party, as a result of which two brothers had lost their lives, while complainant and a passerby sustained injuries on their persons---No delay in lodging of the report---Occurrence had been witnessed by eye-witnesses--- Story of prosecution was further supported by recoveries effected by the Investigating Officer from the place of occurrence and Medico-legal evidence---Tentative assessment of the material available on the file showed reasonable grounds to believe that accused persons were linked with the commission of offence---Accused were not entitled to the concession of bail, which was refused, in circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324, 114 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Bail, grant of---Co-accused who had been granted bail, was only charged for 'Lalkara', but nothing was on record in support thereof--- Nothing was on record to suggest that accused had ever misused the concession of bail, or had tampered with the evidence during investigation---Impugned order had been passed strictly in accordance with law; and jurisdiction exercised by lower court was within its competence---Bail granting order was neither perverse, arbitrary or whimsical, and had been passed on sound reasons---Consideration for cancellation of bail were altogether different from those required for grant of bail---Once an accused was admitted to bail by a competent court, then extraordinary circumstances were required to interfere with the said order---Application for cancellation of bail, being without force, was dismissed.

M. Saleem and Mardan-e-Said Hakim for Petitioners.

Umar Zaman Khan and Fazal Ahmad for the Complainant.

Khwaja Salahuddin for the State.

Date of hearing: 23rd December, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---This single order shall also dispose of connected bail cancellation application bearing Criminal Miscellaneous Bail C.A. No.67-M of 2013, as the same arises from one and the same F.I.R.

2.Accused/petitioners Sheraz and Ayaz, involved in case F.I.R. No.283 dated 1-10-2013, Police Station Dargai, District Malakand, registered under sections 302/ 324/114/34, P.P.C., having failed to secure relief of bail from the learned lower Courts, approached this Court for the concession of post-arrest bail.

3.As per F.I.R., on 1-10-2013 at 07:50 hours, complainant Javed Khan son of Abdullah Shah made report to police in the Casualty Ward of Dargai Hospital to the effect that on the day of occurrence, he along with his brothers Tariq and Marvez were on their way to their land known as Srro Moto Dobandai for cutting of maize crop; at about 07:30 hours when they reached near the house of accused Sheraz, there accused Sheraz, Ayaz sons of Inayatullah Khan, armed with Kalashnikovs and Jehanzeb, empty-handed were standing and started altercation with the complainant party; that at the instigation of accused Jehanzeb, accused Sheraz and Ayaz started firing; as a result of firing of accused Sheraz, brother of complainant Marvez was hit while from the firing of accused Ayaz, other brother Tariq was hit and both got seriously injured; that due to the firing a passerby Islam Gul son of Ziarat Gul also sustained injuries. Both the injured brothers of complainant succumbed to their injuries on the way while shifting to Dargai Hospital. The motive for the occurrence is stated to be altercation, a day prior to the occurrence. The occurrence is stated to have been witnessed by Islam Gul and uncles of the complainant. On this report, case vide F.I.R. referred to above was registered against the accused/ petitioner.

4.Learned counsel for the accused/petitioners contended that the accused/petitioner are innocent and have falsely been charged; that there is no independent, impartial and trustworthy evidence to support the allegations of prosecution/complainant; that nothing incriminating has been recovered from their possession or pointation of the accused/ petitioners; that the report has been lodged after consultation and deliberation. He also argued that regarding the same occurrence another case vide F.I.R. No. 284 of the even date has been registered against the complainant party and it cannot be determined without recording prosecution evidence that who was aggressor and who was aggressed upon, therefore, on this score the accused/petitioners are entitled to the concession of bail.

5.On the contrary, learned State counsel assisted by learned counsel for the complainant, argued that accused/ petitioners have been directly charged in a promptly lodged F.I.R. with specific role of firing; that the Medico-legal Report supports the version of prosecution, therefore, accused/petitioners are not entitled for grant of bail. Learned counsel also argued in support of bail cancellation application and opposed the bail granting order vide which co- accused Jehanzeb has been released on bail and prayed that keeping in view the facts and

circumstances of the case, he was not entitled to concession of bail which legally requires to be recalled.

6.Arguments heard and record perused.

7.It is obvious from perusal of record that accused/petitioners have been directly charged in the F.I.R. with specific role of firing at the complainant party as result of which two brothers have lost their lives, while complainant and a passerby sustained injuries on their person. There is no delay in lodging of the report. The occurrence has been witnessed by eye-witnesses. Moreover, the story of prosecution is further supported by recoveries effected by the Investigating Officer from the place of occurrence and medico-legal evidence. On tentative assessment of the material available on the file, reasonable grounds do exist to believe that accused/petitioners are linked with the commission of offence, therefore, they are not entitled to the concession of bail, which is refused.

8.As far as bail granted to co-accused is concerned, he is only charged for 'Lalkara', and at present there is nothing on record to this effect in support thereof. Moreover, there is nothing on the record to suggest that the accused/respondent has ever misused the concession of bail or have tampered with the evidence during investigation. The order impugned herein, has been passed strictly in accordance with law and the jurisdiction exercised by the learned lower Court is within its competence. The bail granting order is neither perverse, arbitrary or whimsical and has been passed on sound reasons. Furthermore, considerations for cancellation of bail are altogether different from those required for grant of bail. Once an accused is admitted to bail by a competent Court, then extraordinary circumstances are required to interfere with the said order.

Keeping in view the facts and circumstances of the case, the bail petition is hereby dismissed, while the connected application for cancellation of bail, being without force, is also dismissed.

HBT/11/P Applications dismissed.