Noor Ali Shah vs State

2012 M L D 1761

[Peshawar]

Before Assadullah Khan Chamkani, J

NOOR ALI SHAH---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.802-P of 2012, decided on 31st July, 2012.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd, common intention---Bail, grant of---Further inquiry---Accused and co-accused persons were alleged to have fired at the complainant from a short distance with the intention to kill him---Motive for the alleged incident was a previous blood feud---Complainant had thrown the net wide by charging three persons for causing injuries to him---Indiscriminate firing had been attributed to accused persons but only one empty was recovered---No bullet or blood was recovered from the spot--- Distance between complainant and accused persons was 3 to 4 paces as per site plan, yet only injuries were sustained by complainant and one of the injuries bore charring marks--Discrepancy between the F.I.R., site plan and medico-legal report could be determined at trial stage---Case was one of further inquiry---Accused was admitted to bail, in circumstances.

Ishtiaq Ibrahim for Applicant.

Gul Daraz Khan for Respondent.

Abdul Fayaz Khan for the Complainant.

Date of hearing: 30th July, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Petitioner Noor Ali Shah, through the instant petition, seeks bail in case F.I.R. No.294 dated 25-4-2012 registered for offence under sections 324/34, P.P.C. at Police Station Risalpur District Nowshera.

2.The complainant while reporting the matter in injured condition at Mardan Medical Complex alleged that he is serving in Locomotive Factory and on the eventful day at the relevant time he along with Said Bahadar son of Abdul Qayum and Abdus Samand son of Qaisar Khan were coming back to the Factory from attending the court at Mardan, when reached the place of occurrence, in the meanwhile accused Noor Badshah alias Bacha Gul, Noor Ali Shah sons of Noor Ahmad Shah and Aurangzeb son of Miskeen Shah arrived duly armed and at the instance of accused Aurangzeb, they started firing with the intention to kill as a result he got hit and sustained injury and thereafter the accused decamped from the spot. Apart from the complainant, the occurrence is stated to have witnessed by Said Bahadar and Abdus Samad. Motive for the crime was stated previous blood feud.

3.Learned counsel for petitioner contended that except mere allegations in the first report there is nothing on record to connect the petitioner with the alleged crime; that it is the job of one man and because of the blood feud enmity the charge has been exaggerated by the complainant party; that the medical evidence is not conformity with the site plan because one of the entry wound bearing charring marks; that after the alleged corroborated by recovery of empty from the spot coupled with injury sheet and medico-legal report, therefore, in the given circumstances the petitioner is not entitled to the concession of bail. Learned State counsel supported the arguments advanced by the learned counsel for the complainant.

5.I have heard the learned counsel for the accused-petitioner as well as the learned State counsel assisted by the learned counsel for the complainant and have also gone through the record.

6.While dealing with the bail matter of an accused involved in a non-bailable offence he shall not be so released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life unless the case is covered by any of the provisions of subsection (1) of section 497, Cr.P.C. but if it appears to the Court at any stage of investigation, inquiry or trial, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, he shall be released on bail under subsection (2) of section 497, Cr.P.C.

7.In the instant case, the complainant has thrown the net wide by charging three accused including two real brothers for causing injuries to him. Though the complainant attributed indiscriminate firing to the two brothers but on the other hand one empty of .30 bore pistol was recovered. No spent bullet or blood was recovered from the spot. Moreover, the distance between the victim and the assailants was 4/3 paces as per site plan, yet injuries sustained by the complainant, one of the injury bearing charring marks. Till this discrepancy between the F.I.R., the site plan and the medico-legal report would be determined at the stage of trial. Therefore, tentative assessment of the materials so far brought on record, prime facie, brings the case of the accused/petitioner within the ambit of further inquiry entitled him to the concession of bail.

8.Resultantly, this bail application is allowed and the accused-petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.1,00,000 (Rupees One Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate. However, the prosecution is directed to submit challan within fifteen days and the trial court is directed to conclude the trial within a period of four months. The office is directed to send the record to the quarter concerned forthwith.

The above are the reasons of my short order announced on 30-7-2012.

MWA/262/P Bail allowed.