Taimur Hussain vs State

2012 Y L R 2703

[Peshawar]

Before Assadullah Khan Chamkani, J

TAIMUR HUSSAIN and others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 915-P of 2012, decided on 30th July, 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, unlawful assembly---Bail, grant of---Further inquiry--- Accused persons were alleged to have fired at the complainant party---Alleged motive of the occurrence was refusal to give hand of a girl in marriage to the accused side---Five accused persons were charged for effective firing at the complainant party but no specific role had been attributed to anyone---Role of firing had simultaneously been attributed to all five persons but only a single injury had been caused to three victims and that too on non-vital parts except for one---Only one empty was recovered from the spot, which indicated that charge had been exaggerated---Accused persons had not repeated fire shot despite the fact that victims were at their mercy, which cast doubt on their intention to kill the complainant party---Factum of intention to commit murder of the victims required further probe---Investigation in the case had already been complete and accused persons were no more required for further investigation--- Accused persons were admitted to bail, in circumstances.

Qaiser Abbas Bangash for Petitioner.

Shafiullah for the State.

Shakeel Ahmad for the Complainant.

Date of hearing: 30th July, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Through the present petition, petitioners (1) Moin Hussain (2) Taimur Hussain (3) Jehangir Ali (4) Hafeez Hussain and (5) Shan Ali sons of Arbab Hussain seek bail in case F.I.R. No.441 dated 28-5-2012 registered for offence under sections 324/148/149, P.P.C. at Police Station City District Hangu.

2.The complainant Ghanzafar Ali while reporting the crime in the emergency room of Civil Hospital Hangu alleged that his father had returned from Iran and people were coming for his congratulation when in the meanwhile the accused Moin Hussain, Taimur Hussain, Jehangir Hussain alias Jehangir Ali, Hafeez Hussain and Shan Ali all sons of Arbab Hussain emerged on the scene and fired at us with which he, their father Hasrat Hussain and Ashraf Hussain were hit and sustained injuries where after all the accused fled away from the spot. Motive for the occurrence was stated to be their refusal to give hand of a girl to the accused.

3.Learned counsel for petitioners contended that the petitioners have been charged for the commission of alleged offence with no specific role attributed to any of them, which makes the case highly doubtful; that three persons have been shown injured by receiving single injury; that from the spot only one empty has been recovered, and one bullet mark has been shown on the wall in between the baitak and the house which makes the case one of further inquiry; that the injuries sustained by the victims are simple in nature and out of them only one victim has received injury on non-vital part of his body; that no recovery has been effected from the present petitioners; no independent witness has been cited to have witnessed the crime though the occurrence has been shown taken place in a thickly populated area; that the medical evidence contradicts the ocular account and that the motive has also not been established, thus, in the above facts and circumstances the petitioners are entitled to the grant of bail.

4.Learned counsel for the complainant while refuting the arguments from other side contended that the petitioners have been directly nominated in the promptly lodged F.I.R. for firing at the complainant party causing injuries to three persons, which is corroborated by the recovery of blood stained earth and crime empty from the spot, therefore, on the available record the petitioners are not entitled to the concession of bail. Learned State counsel supported the submissions made by the learned counsel for the complainant.

5.I have heard the learned counsel for the accused-petitioners as well as the learned State counsel assisted the learned counsel for the complainant and have also perused the record with their able assistance.

6.Without touching the merits of the case of the prosecution or the plea of defence, suffice it to say that the complainant had charged five persons for effectively firing at them but no specific role has been attributed to anyone. The firing has simultaneously been attributed to all the five persons but only a single injury has been caused to three victims and that too on non- vital part except one. Furthermore only one empty has been recovered from the spot which indicates that the charge has been exaggerated. The accused had not repeated the shot although the victims were at their mercy which cast doubts of their intention to kill the complainant party. The factum of intention to commit murder of the victims requires further probe in view of the facts and circumstances of the case brought on record. Investigation in the case has already been completed and the accused-petitioners are no more required for further investigation, hence their

case is that of further inquiry within the ambit of subsection (2) of section 497, Cr.P.C. and they are entitled to the concession of bail.

7.Resultantly, this bail application is allowed and the accused-petitioners are admitted to bail provided each of them 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.

8.Before parting with this judgment I must clarify that the observations made above are tentative in nature and shall not prejudice the case of either side at the trial.

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

MWA/260/P Bail granted.