' MUHAMMAD ALAM KHAN, J.--- By way of this order I propose to decide Criminal Miscellaneous No,993 of 2007 Haleem Khan and others v. State and others, Bail Application and Criminal Miscellaneous No,1107 of 2007 Mst. Salma Bibi v. Nazeef and others for bail cancellation as both arises out of the same F.I.R. No,6, dated 13-7-2007 under sections 302/324/114, P.P.C., 13 A.O. Of Police.
Station, Kot at Dargai, Malakand Agency.
2. Briefly narrated the facts of the case are that on 13-7-2007 at 10-10 hours Sultan Mulk, Naib Subedar/Post Commander Kot received an information that firing has taken place at Budh Dargai and one of the deceased had been taken to Civil Hospital Dargai, on this information he along with the police squard went to Civil Hospital Dargai, where in emergency ward one dead body of Abdul Haq son of Minhajul Arfeen resident of Usmani Khel Dargai, at present Budh, was lying. Salma Bibi widow of Abdul Haq reported the matter at 11-40 hours, in injured condition that her husband Abdul Haq had another wife besides Salma Bibi complainant, namely. Mst. Shaukat daughter of Umra Khan. On the day of occurrence the complainant, her husband and Mst. Shaukat were present at the house. In the meantime accused Haleem Khan, Nazeef Khan and Ibrahim Khan son of Umra Khan residents of Ghari Usman Khel, entered the house and started altercation with her husband namely Abdul Haq deceased, that why he has beaten their sister. On this the deceased replied that the domestic disputes in the houses, is normal routine matter and that they should not interfere in their internal matters. On this scuffle ensued between accused and Abdul Haq deceased. In the meantime accused Ibrahim caught hold of the deceased and at the instance of Nazeef Khan, accused Haleem Khan took out a pistol and started firing at the deceased Abdul Haq with which the complainant and deceased Abdul Haq were hit. The complainant received injuries while Abdul Haq died on the spot. All the three accused decamped from the spot taking with her Mst. Shaukat in a Suzuki pick-up. There was no previous enmity between the parties, hence she charged all the three accused for the commission of the offence. This first information was reduced in the shape of Murasila which was incorporated in F.I.R. No,6, dated 13-7-2007 and consequently a case under sections 302/324/114, P.P.C. Police Station Kot Dargai was registered against the accused, section 13, A.O. Was subsequently added by the local police.
3. All the three accused moved bail application before the Senior Civil Judge/Ala Illaqa Qazi Malakand at Batkhela which was heard by Mr. Muhammad Shoaib, Senior Civil Judge, who rejected their bail application vide order, dated 30-7-2007. The petitioner then moved a bail application to the learned Additional Sessions Judge/Izafi Zila Qazi, Malakand at Dargai, being Bail Application No,71/2007 and which came for hearing before Mr. Salahuddin Khan, Additional Sessions Judge, who after hearing the counsel for the parties and perusing the data available on the record accepted the bail application of accused Nazeef Khan and he was ordered to be released on bail provided he furnishes bail bond in a sum of Rs,2 lac, with two sureties, while the request for bail of Haleem Khan and Ibrahim accused was turned down vide order, dated 9-8-2007.
4. Haleem Khan and Ibrahim Khan accused have filed Bail Application No,993 of 2007 while Mst.
Salma Bibi has moved Bail Cancellation Application No,1107 of 2007 as she is aggrieved from the order of the learned Additional Sessions Judge releasing Nazeef son of Umra Khan on bail.
5. Sahibzada Asadullah, Advocate submitted written arguments for the accused/petitioner while the father of the complainant Mst. Salma Bibi also submitted written arguments. It was submitted by Sahibzada Asadullah, Advocate that the accused Nazeef Khan has only been charged for proverbial Lalkara and has rightly been released on bail, while the case of the prosecution against the other accused is shaky and hence the other two petitioners are also entitled to bail. Elaborating his arguments he submitted that the accused/petitioner Ibrahim has been given only a role of catching hold of the deceased and no overt act has been attributed to him. Furthermore, the evidence against the other accused namely Haleem Khan is also full of contradictions. It was next submitted that the date of birth of accused Ibrahim is 30-3-1991 according to the School Certificate and at the time of alleged commission of the offence he was below'. 16 years.
6. On the other hand father of Mst. Salma Bibi complainant submitted that there was no previous enmity between the parties and all the accused are vicariously liable for the murder of the deceased and effective firing at the complainant hence, they are not entitled to the concession of bail and the learned Additional Sessions Judge has fallen into an error in granting the concession of bail to Nazeef accused-respondent.
7. Mr. Muhammad Saeed Khan Shangla, learned Additional Advocate-General submitted that all the three accused-petitioners are involved in the commission of the offence, thus, losing their right of bail. Reliance was placed on the cases of Kamran Haider v. The State reported in 1996 PCr.LJ 1902, Imtiaz Ahmad and others v. The State PLD 1997 SC 545, Munawar v. The State 1981 SCM R 1092, Shah Muhammad v. The State 1999 PCr.LJ 1105 and Noroz Khan v. The State 1999 PCr.LJ 698.
8. I have given my anxious consideration to the facts of the case and legal aspect of the case perusal of the record reveal that accused Nazeef respondent in bail cancellation Application No,1107 of 2007 has been given the role of Lalkara in the F.I.R. And no overt act has been attributed to him. Thus, in view of the judgments in the cases of Tariq Zia v. The State 2003 SCM R 958; Muhammad Asad v. ,State 2004 YLR 1732 and Mazhar Ali v. State 2007 PCr.LJ 925 the accused Nazeef has rightly been extended the concession of bail by the learned Additional Sessions Judge, which call for no interference. Furthermore in a bail cancellation application strong evidence has to be shown that the accused has misused the concession of bail which aspect is lacking in the present case. Thus, bail cancellation application bearing No,407 of 2007 is dismissed.
9. Regarding the bail application filed by Haleem Khan and Ibrahim Khan, petitioner in Criminal Miscellaneous No,993 of 2007, perusal of the record shows that Haleem Khan accused petitioner is directly charged in the F.I.R. For effectively firing at the deceased and the complainant, as narrated in the F.I.R. And also established from the data available on the record, while the role of Ibrahim is that of catching hold of the deceased. He was empty-handed and was attributed no act of actual firing.
10. On the ground of age he is not entitled to bail because calculating his age from date of birth of School Certificate from 30-3-1991 at the time of commission of offence he was above 16 years as stated earlier that he was not attributed any actual role of firing, thus, in view of the dictum laid down in case of Shahid v. The State 1994 SCM R 393 and Mahmood Akhtar and others v. Haji Nazir and others 1995 SCM R 310(b) he is entitled to the concession of bail.
11. The case of Haleem petitioner is almost different from the other co-accused he is directly charged in the F.I.R. For actual firing at the deceased and the complainant and he has rightly been refused the concession of bail by the lower Courts and is not entitled to be released on bail by this Court.
12. The case-law cited by the complainant has got no relevancy with the facts of the present case.
13. In view of the facts and circumstances of the case narrated above, Bail Cancellation Application No,1107 of 2007 titled Mst. Salma v. Nazeef and others is dismissed. The prayer of bail of Haleem accused) is also rejected. While accepting the bail application of Ibrahim son of IF Umra Khan resident of Ghari Usman Khel Dargai petitioner No,2 in Criminal Miscellaneous No,993 of 2007, he is ordered to be released on G bail, provided he furnishes bail bonds in the sum of Rs,2,00,000 (two lacs) with two sureties each to the satisfaction of Judicial/Duty Magistrate Dargai Malakand. The learned Magistrate is directed to ensure that the sureties are men of means and integrity.