Muhammad Ishfaq vs Sher Ahmad

2012 Y L R 1942

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD ISHFAQ---Petitioner

Versus

SHER AHMAD and 3 others---Respondents

Petition No.480 of 2011, decided on 24th February, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302/324/109/34---Qatl-e-amd, attempt to commit qatl-e-amd, abetment, common intention---Application for cancellation of bail---Allegation against accused and co-accused (respondents) was that they fired at the complainant (applicant) and his relative (deceased) on account of a dispute over water---Validity---Accused and co- accused had effected genuine compromise with the legal heirs of the deceased, therefore, S. 302, P.P.C was no more part of the record---Medico-legal Report of the complainant revealed that he had received a single firearm injury on the palm of his hand, which was a non-vital part of the body---Accused and co-accused were charged for general firing and applicability of their common intention was yet to be determined---Where bail was granted by a competent court of law, then strong and exceptional grounds were required for its cancellation, and in the present case no oral or documentary evidence was available on record to show that accused and co- accused had either misused the concession of bail or tampered with the investigation process--- Application for cancellation of bail was dismissed, in circumstances.

2004 SCMR 231 rel.

Ghulam Hur Khan Baloch for Petitioner.

Nemo for Respondents.

Date of hearing: 24th February, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Through this application filed under section 497(5), Cr.P.C, Muhammad Ishfaq, complainant/petitioner, seeks the cancellation of bail granted to Sher Ahmad, Saeed Ahmad and Aziz Ahmad, accused/respondents Nos.1 to 3, by the learned Additional Sessions Judge Paharpur vide order dated 13-12-2011 in case F.I.R. No.130 dated 17- 6-2010 of police station Paharpur, registered under sections 302/ 324/109/34, P.P.C.

2.According to the report lodged by the complainant Muhammad Ishfaq, on the fateful day, his brother Abdul Hafeez and father Abdullah were busy in irrigating their field at mauza Katgahr while he(the complainant) and relative Mohsin Ali were proceeding towards them on a motorbike driven by the latter. At about 11-00 a.m. when they reached near 'Nalla Seem' on Katgahr road, the accused, namely, Saeed Ahmad armed with rifle, Aziz Ahmad armed with Kalashnikov and their father Sher Ahmad armed with pistol emerged on the road, stopped them and under the command of Sher Ahmad, all of them fired at them with which they were injured, whereafter the accused decamped from the spot. Soon, thereafter, the injured Mohsin Ali breathed his last. The occurrence was alleged to have been witnessed by one Akhtar son of Ghulam Rabbani, besides the complainant. Motive for the offence was stated to be that at morning time, a dispute had arisen over the turn of irrigation water between Sher Ahmad, Dr. Sadiq and the complainant party. It was also alleged in the report that the occurrence was the result of active connivance of Dr. Sadiq son of Jewan with the accused/respondents.

3.Learned counsel for the complainant/petitioner argued with great vehemence that the accused/respondents along with their co-accused Dr. Sadiq were directly charged in the promptly lodged report by the complainant; that the incident had taken place in a broad-daylight and thus there is no question of mistaken identity; that the medical evidence is in line with the prosecution version; that the Investigating Officer had recovered the empties of weapon of offence mentioned in the first report and that the accused/respondents being hardened and dangerous criminals are misusing the concession of bail.

4.I have carefully gone through the record of the case and considered the submissions of the learned counsel for the petitioner.

5.Admittedly, the accused/ respondents have effected genuine compromise with the legal heirs of the deceased Mohsin Ali on 30-1-2011 at the stage of bail-before-arrest and thus section 302, P.P.C. is no more on the record. As far as section 324, P.P.C. is concerned, the Medico-legal Report of the complainant reveals that he has received a single firearm injury on the palm of his right hand, muscle deep, i.e. a simple injury at the non-vital part of his body. The doctor has also opined the probable duration of such injury within six hours though the complainant/victim was examined within one hour and 25 minutes of the occurrence. Thus the ocular evidence is not in consonance with the medical evidence. The accused/ respondents have been charged for general firing and the applicability of their common intention is yet to be thrashed out during trial.

6.Even otherwise, when bail is granted by a competent court of law, then strong and exceptional grounds are required for its cancellation. There is no oral or documentary evidence on record to show that the accused/respondents have either misused the concession of bail or tampered with the investigation process. Reliance placed on 2004 SCMR 231.

7.Therefore, finding no substance in this application, the same is hereby dismissed in limine.

8.Any observations made in this order being of tentative nature should not prejudice the merits of the case during trial.

M.W.A./163/P Application dismissed.