Shah Hussain vs Fahad

2013 P Cr. L J 675

[Peshawar]

Before Mrs. Irshad Qaiser, J

SHAH HUSSAIN---Petitioner

Versus

FAHAD and another---Respondents

Criminal Miscellaneous No. 989-P of 2012, decided on 31st August, 2012.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl- e-amd, common intention---Bail, refusal of---Allegation against the accused and co-accused persons was that they fired at and killed the deceased due to blood feud enmity---Accused had been nominated in the F.I.R. with a specific role---Ocular account was supported by medico- legal evidence---Soon after the occurrence accused along with the co-accused persons absconded and they remained absconders for sufficient period of time---Prima facie case existed against the accused in view of the facts of the case---Bail application of accused was dismissed in circumstances.

2011 SCMR 92; 2009 YLR 9; 2010 PCr.LJ 1148; 2009 SCMR 299; 2000 PCr.LJ 195; 2012 SCMR 649; 2012 YLR 1076; 2012 SCMR 556 and 2010 SCMR 1861 ref.

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

----S. 497---Bail---Material to be relied upon---Scope---Courts had to mainly rely upon material brought on record by the prosecution including F.I.R., statement of complainant under S.161, Cr.P.C. as well as incriminating/circumstantial evidence etc. for tentative assessment to assess whether accused was involved in the commission of the offence or not.

Zia ul Haq for Petitioner.

Shakeel Ahmad for the State.

Noor Allam Khan for the Complainant.

Date of hearing: 31st August, 2012.

JUDGMENT

MRS. IRSHAD QAISER, J.---Petitioner Shah Hussain son of Mohsin Khan resident of Toora Waree District Hangu seeks his release on bail in case F.I.R. No.439 dated 12-16-2011 under sections 302/ 324/34, P.P.C. of Police Station Doaba, District Hangu after refusal of bail by learned Sessions Judge, Hangu vide order dated 13-7-2012.

2.The brief facts of the case incorporated in F.I.R. registered at the report of complainant Fahad son of deceased Adam Khan made on 12-10-2011 at 9:45 hours when he brought the dead body of his father in P.S. along with his co-villagers in a Pickup are that he along with his deceased father was going back to their house after having shopping and when reached at the spot accused Qabil Hussain, Samiullah, Shah Hussain along with one unknown person emerged with fire-arms and started firing at them due to which his father. Adam Khan got hit and died on the spot. While luckily he escaped unhurt. Motive behind the occurrence is blood feud enmity. He charged all the accused for the commission of offence.

3.Learned counsel for he petitioners contended that all the accused are brothers inter se and are aged persons and wide net was thrown in order to involve all the male family members of the accused. That no recovery or blood stained earth and empties were effected from spot. Medico- legal evidence negates the ocular account. Complainant was not present at the spot as he had not received any injury. It is an unseen occurrence. No independent witness comes forward to depose in favour of complainant. That deceased was proclaimed offender. He relied on 2011 SCMR 92, 2009 YLR 9, 2010 PCr.LJ 1148 and 2009 SCMR 299.

4.These arguments were rebutted by counsel for the complainant assisted by State counsel and contended that accused are directly charged in the F.I.R. Medico-legal Report supported the ocular account. Four persons were charged for nine injuries on different parts of the deceased. Soon after the occurrence accused became absconders. Challan under section 512, Cr.P.C. was submitted against accused. Some of the evidence was recorded and after their arrest supplementary challan was put in Court and case is fixed for trial. No empty or blood-stained earth was collected from the spot because the occurrence has taken place at thorough fare and there are possibilities that these empties were misplaced and blood was removed due to rush of people however blood-stained cap of deceased was recovered from the spot. He relied on 2000 PCr.LJ 195 Peshawar, 2012 SCMR 649, 2012 SCMR 1076, 2012 SCMR 556, 2010 SCMR

5.It is to be noted that the petitioner has been nominated in the F.I.R. along with his other brothers who are still at large. Specific role has been attributed to him. The ocular account is supported by Medico-legal evidence. Deceased received 9 injuries on different parts of his body. Soon after the occurrence petitioner along with his brother became absconder. Challan under

section 512, Cr.P.C. was submitted in the court. After his arrest supplementary challan was submitted and case is fixed for trial. It is settled principle of law that while deciding the bail application of an accused the courts have to mainly rely upon the material brought on record by prosecution including F.I.R., statement of complainant under section 161, Cr.P.C. as well as incriminating/ circumstantial evidence etc. for tentative assessment against accused to assess whether accused is involved in the commission of offence or not. He also remained absconder for sufficient time and now the case is fixed for his trial. The truthfulness of the event is to be decided by the trial Court but in view of the present facts a prima facie case exists against accused. Therefore, instead of embarking upon the facts in detail, lest it may cause prejudice to the case of either of the parties, the petitioner is not entitled to the concession of bail. Hence his application is dismissed.

MWA/383/P Bail refused.