' Petitioners Payoo Khan and Rahim Khan, brothers inter se, stand involved alongwith co-accused in case arising out of F.I.R. No,179, dated 29-10-2003 registered at Police Station, Domail, District Bannu for offences under sections 302/324/148/149, P.P.C. The petitioners have moved instant application under section 497, Cr.P.C. Seeking post-arrest bail on refusal of the same by two Courts below vide orders, dated 11-11-2003 and 24-11-2003 respectively.
2. The prosecution story, in brief, is that on the day of occurrence i,e, 29-10-2003 at about 10-30 hours, complainant Noor Shad Ali alongwith Shama Raz (deceased) and one Aziz Khan were sitting at Azim Kalla Chauk on a bench when in the meanwhile a Datsun Pick-up came and stopped there.
The petitioners and co-accused Zakirullah, Nazirullah and Murad Khan, duly armed with kalashnikovs and kalakovs, were sitting in the Datsun. On .Seeing the complainant party, they resorted to indiscriminate firing at them which resulted into the death of Shama Raz and injuries to Aziz Khan and an unknown passerby namely Umar Khitab. After accomplishing the mission, the accused managed to escape. Complainant and his companions witnessed the occurrence. Motive for the offence was stated to be previous blood feud between the parties.
3. Mr. Gauhar Zaman Khan Kundi, Advocate for the petitioners, in support of the bail application, contended that except the bare allegation in the F.I.R., prosecution is not in possession of any material to associate the petitioners with the commission of crime; that P.W. Aziz Khan stated to have received injuries during the occurrence, in his statement recorded under sections 161 and 164, Cr.P.C. Has not charged the present petitioners for commission of offence; that similarly Umar Khitab, a passerby injured has also not seen anybody making firing and that during investigation of the case, the petitioners were found innocent and they were placed in Column No,2 of the challan.
Additionally, he urged that the petitioners being of advance age i,e, 65 and 70 years respectively with physical infirmity, their participation in the offence is highly doubtful. To substantiate his pleas, he placed reliance on 1999 SCMR 127, 1999 M LD 939, 2001 M LD 180, 2002 PCr.LJ 844 and PLD 1998 SC 1.
4. Conversely, Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Abdul Latif Khan Baloch, Advocate for the complainant bitterly opposed the bail and contended that prosecution is in possession of adequate evidence to connect the petitioners with the commission of crime and the material on record clearly tends to suggest that there are reasonable grounds to believe that the petitioners are guilty of the offence charged with which falls within the prohibitory clause of section 497, Cr.P.C. Concluding the arguments, it was urged that some of the accused persons are still absconding and in case the petitioners are released on bail, it will seriously prejudice the case of prosecution.
5. An accused would only be entitled to the discretionary relief of bail when on the tentative assessm ent of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect the Court is debarred to hold that the case is of further inquiry entitling the accused to bail within the meanings of section 497(2), Cr.P.C. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum.
The Court has to form a view by assessing the evidence on record tentatively.
6. Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently, after evaluation of evidence. The condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further inquiry which may show that he may not be convicted of charge under section 302, P.P.C.
And acquitted or convicted for a lesser offence.
7. No doubt it is true that the petitioners are directly nominated in the promptly lodged report for the commission of crime and a definite role of firing has been attributed to them but it is equally true that in statement of injured Aziz recorded under section 161, Cr.P.C., the petitioners have neither been charged nor has their presence been shown at the spot at the time of occurrence, hence, the case of the petitioners necessitates further probe. It is also worth mentioning that statement of said Aziz Khan has also been recorded under section 164, Cr.P.C. Wherein too, the petitioners have not been charged. An injured stranger/ passerby namely Umar Khitab has not charged anyone for firing. This too makes the case of prosecution doubtful even at bail stage, leaving a lot to be inquired at the trial. During investigation, the police has also admitted the innocence of the petitioners for not being present at the spot at the time of alleged occurrence and it is evident from the investigational proceedings that police/Investigating Agency had no other option in attendant circumstances, but to place the names of the petitioners in Column No,2 of the complete challan.
Possibility of involvement of the petitioners at the instance of the complainant cannot be ruled out altogether. I am of the firm view that a case for grant of bail is made out. Accordingly, by accepting this petition, I direct that the petitioners be released from custody subject to their furnishing bail bonds in the sum of Rupees five lacs each with two sureties each in the like amount to the satisfaction of Illaqa Magistrate, Bannu.
8. I had, by order, dated 19-3-2004 allowed bail to the petitioners for reasons to be recorded later.
Above are the detailed reasons.