Hussain Khan vs State

2013 Y L R 2235

[Peshawar]

Before Qaiser Rashid Khan, J

HUSSAIN KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Petition No.60-D of 2013, decided on 5th April, 2013.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd and common intention---Bail, refusal of---Allegation against the accused was that he along with co-accused committed murder of the brother of complainant---Accused was nominated in the F.I.R.---Medical evidence and recovery of empties supported the prosecution version---Accused remained fugitive from law without any explanation---No evidence or document was available to show that treatment of the accused (who was stated to be sick) was not possible in the jail---Trial in the case had commenced---Accused was prima facie connected with the offence entailing capital punishment- --Accused was not entitled to the concession of bail---Bail was refused in circumstances.

Ghulam Hur Khan Baloch for Petitioner.

Khan Wali Khan Mahsud, Addl: A.G. for Respondents.

Bahadur Khan Marwat for the Complainant.

Date of hearing: 5th April, 2013.

JUDGMENT

QAISER RASHID KHAN, J.---Having failed to get the concession of bail from the courts below vide orders dated 21-2-2013 and 2-2-2013, the accused/ petitioner has filed the instant petition for his release on bail in case F.I.R. No.14 dated 22-2-2012 registered under sections 302/34, P.P.C. at Police Station Shaheed Nawab Khan, Panyala, District D.I.Khan.

2.The allegations as contained in the F.I.R. lodged by the complainant Sher Nawaz are that on 22-2-2012 at 06030 hours, the accused/petitioner along with his co-accused started firing at Pervaiz, brother of the complainant with their Kalashnikovs as a result of which he got hit and expired on the spot.

3.Learned counsel for the petitioner argued that the accused/petitioner is innocent and has been falsely charged; that there is delay of four hours in lodging the report which speaks of consultations and deliberations; that there is no independent witness of the occurrence; that the medical report and the other circumstantial evidence do not support the prosecution version; that the accused/petitioner is a chronic patient of Hepatitis C and his treatment in the jail hospital is not possible and thus the accused/petitioner is entitled to the concession of bail.

4.Conversely, the learned A.A.-G. for the State assisted by the learned counsel for the complainant opposed the bail application with vehemence on almost the same grounds as enumerated in the impugned order.

5.Arguments heard and record perused.

6.As per the record, the complainant namely, Sher Nawaz on 22-2-2012, lodged the report to the effect that he along with his brother Muhammad Parvez used to ply Datsun Pick-up daily from village Katta Khel to Lakki Marwat with his brother was a driver and the complainant as a cleaner. On the day of occurrence at 6 a.m, they proceeded from village Katta Khel towards Lakki Marwat. On covering some distance, they saw Muhammad Din with his sons Hassan and Hussain present on the road duly armed with Kalashnikovs who stopped the vehicle. Hassan alighted Muhammad Parvez, the brother of the complainant from the driving seat and hit him with the butt of Kalashnikov and made them sit in the rear portion of the datsun and Hassan himself occupied the driving seat and turned the vehicle towards village Katta Khel. At about 6- 30 a.m, when they reached the thoroughfare near the pond, Hassan stopped the vehicle and the complainant and his brother were alighted from the same. Muhammad Din accused commanded his sons to kill Parvez who made firing at Parvez with their respective Kalashnikovs with which he got seriously injured. The complainant fled away from the spot and so did the accused. The complainant when attended his brother, the latter had succumbed to the injuries on the spot. Motive for the occurrence was stated to be dispute over the front seat of the vehicle which was refused to the accused. As is evident from the record, the accused/ petitioner is directly nominated in the F.I.R. for committing the murder of the deceased. The medical evidence, recovery of empties of 7.62 bore from the spot further support the prosecution version. Moreover, the accused/petitioner remained fugitive from law for about ten months for which at the moment there is no plausible explanation. As far as his ailment is concerned, no evidence or document is forthcoming to show that his treatment is not possible in the jail. The trial in the

case has already commenced. Thus by taking a tentative assessment of the material on record, the petitioner is prima facie connected with the offence entailing capital punishment and is thus not entitled to the concession of bail.

7.For the reasons mentioned above, the instant bail petition being bereft of any merit is hereby dismissed.

8.Any observations made in the order being purely tentative in nature should in no way prejudice the proceedings before the learned trial Court where the case be decided on its own merits after recording evidence.

AG/318/P Petition dismissed.