This Cr. Misc. Bail Application has been filed on behalf of accused-petitioner namely, Bashir-ul-Haq son of Fazal Haque, resident of Opposite P.S Hashtnagri, Tehsil & District, Peshawar for releasing him on bail in case FIR No, 197, dated 03.04.2008, registered under Sections 302/324/34, PPC at Police Station Khan Raziq, Peshawar. The petitioner approached the Court of Judicial Magistrate, Peshawar for grant of bail but the same was dismissed through order dated 05.06.2008. Not contented therewith, the petitioner submitted an application in the Court of learned Sessions Judge, Peshawar, which was heard by the learned Additional Sessions Judge-V, Peshawar but met with no better success and his application was dismissed on 20.06.2008. Hence, this bail application..
2. The prosecution case as narrated in the 'FIR is that on 03.04.2008, Ghulam Qadir complainant reported the matter to the police that he alongwith his brother Manzoor Qadir (now dead) and Miraj son of Noor Din at about 1800 hours were present in the shop of Azizullah alias Tauray. Wheh in the meanwhile, Bo shirul Haq (accused-petitioner) and Muhammad Arshad (absconding accused) came there and Bashirul Haq ordered Muhammad Arshad to kill (Maaro) them. On this, Muhammad Arshad opened fire with his pistol in order to cause Qatl-i-Amd and as a result thereof, Manzoor Qadir was hit and died on the spot while he (complainant) escaped unhurt.
Motive for the occurrence was previous enmity between the parties. The occurrence was also witnessed by Miraj. The complainant charged the accused-petitioner alongwith his companion Muhammad Arshad for the commission of offence.
3. M/s Khawaja Muhammad (Gara) and Sohail Akhtar Advocates appearing for the accused- petitioner vehemently argued that the petitioner is innocent and falsely involved in the instant case by the complainant for ulterior motives; that no overt act of firing at the deceased is attributed to the petitioner by the complainant party and that only proverbial role of "Lalkara" is attributed to the petitioner which too is the result of consultation and deliberation; that plea of "Alibi" of the petitioner is supported by the witnesses, therefore in the stated circumstances, the accused-petitioner be admitted to bail as prayed for.
4. As against that, Mr. Alamgir Durrani, learned Deputy Advocate General for State and Mr. Javed A.
Khan Advocate for the complainant party forcefully opposed the bail of the petitioner by submitting that it is a daylight occurrence i,e, 6.00 p.m., wherein, the petitioner was directly charged in promptly lodged FIR for the commission of offence and the occurrence is witnessed by Miraj PW; that accused-petitioner being brother-in-law of absconding accused Muhammad Arshad was in commanding position and on his direction, deceased Manzoor Qadir was killed by absconding accused Muhammad Arshad; that medical evidence and incriminating recoveries effected from the spot also supported the prosecution case; that the plea of "Alibi" being false and afterthought cannot be made basis for the grant of bail to the petitioner, therefore, the Bail of accused- petitioner be out-rightly rejected.
5. I have heard the arguments of the learned counsel for both the parties and have gone through the record with their valuable assistance. Admittedly, accused-petitioner Bashir-ul-Haq was empty handed at the time of occurrence and he was not charged for firing at the deceased except that proverbial role of "Lalkara" was attributed to him. According to the application of petitioner, he went to Kalam on 01.04.2008 and came back to 05.04.2008 but he filed application regarding his plea of "Alibi" on 10.05.2008. In the circumstances, comments on the plea of "Alibi" is not relevant at this stage and in view of the role of "Lalkara" attributed to the accused-petitioner by the complainant party, referred to above, the guilt of petitioner needs further probe within the meaning of sub-section (2) of Section 497 Cr.P.C. The investigation in the instant case is complete and the petitioner is no more required for investigation purpose, who is behind the bar since his arrest and it is not sure as to when the trial will be concluded against him. Therefore, in view of the above items of the case, I find that the petitioner has succeeded in making out a good case for grant of bail. Reliance placed on PLD 1996 SC 241 "Syed Amanullah Shah us. State"
"S. 497--Bail--Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial."
6. For what has been discussed above, the bail application of accused-petitioner is hereby accepted, he be released on bail, provided he furnishes Bail Bonds in the sum of Rs, 2,00,000/- (Rupees two lacs) with two sureties, each in the like amount to the satisfaction of 11laqa/Duty Judicial Magistrate at Peshawar, who shall ensure that the sureties offered by the accused- petitioner are local, reliable and men of means.