This Cr. Misc. Bail application has been filed on behalf of accused-petitioners namely, Muhammad Iqbal and Muhammad Shoaib both sons of Ghulam Idrees Khan, resident of village Tarnah Farm, Tehsil & District Peshawar for releasing them on bail in case FIR No, 762, dated 07.12.2007 registered under Sections 302/324/34, PPC at Police Station Chamkani. The petitioners approached the Court of Judicial Magistrate for grant of Bail but the same was dismissed through order dated 16.02.2008.
Not contented therewith, the petitioners 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 their application was dismissed on 04.03.2008. Hence, the instant Bail application.
2. The prosecution case as narrated in the FIR is that on 7.12.2007 at 1700 hours, complainant Muhammad Usman had lodged a report to the police that on the fateful day, his brother Gul Rehman (now dead) was ill and he alongwith him was going to doctor for the purpose. When they reached machine chowk near the hujra of one Muhammad Ashraf, Chairman, accused Muhammad Iqbal, (2) Muhammad Shoaib and Muhammad Zubair all sons of Ghulam Idrees who were already present there duly armed with deadly weapons, on seeing them, started firing with intention to commit Qatl-i-Amd, due to which Gul Rehman was hit and sustained serious injuries while the complainant escaped unhurt luckily. The injured was being brought to LRH for treatment but on their way succumbed to the injuries. Motive for the occurrence is stated to be property dispute between one Akbar Jan (maternal cousin of complainant) and accused party and the complainant party was siding with their cousin. The occurrence was also witnessed by Gohar Zaman. The complainant charged the accused-petitioners alongwith their brother Muhammad Zubair for the commission of offence.
3. Mr. Javed A. Khan Advocate, learned Defence counsel for accused-petitioners vehemently argued that the petitioners are innocent and falely involved in the case for ulterior motives; that there is no independent eye-witness of the occurrence; that the so-called eye-witness of the case Gohar Zaman was introduced later on, who is highly interested being close relative of complainant party; that due to indiscriminate firing by three persons, only one person was hit and died but amazingly, the complainant Muhammad Usman and eye-witness Gohar Zaman miraculous escaped unhurt from a short distance, which do creates doubts regarding their presence at the time of occurrence on the spot; that according to the prosecution versions, deceased Gul Rehman should have received fire-arm wounds on his front, whereas, according to post-mortem report, the deceased received entry wound on his back; that the blood was not recovered from the thoroughfare from the point allocated to the deceased rather the same was recovered from the front of the shop of Sabir; that no empty shell was recovered from the spot; that all family members of the accused party were involved in the case; that elders of the locality including MNA/MPA have filed Affidavits regarding the innocence of the accused-petitioners; that petitioner Muhammad Iqbal is diabetes patient while petitioner Muhammad Shoaib is a heart patient. While concluding his arguments, the learned Defence counsel forcefully argued that because of the aforesaid infirmities and fissures in the prosecution case, the guilt of the petitioners warrants further inquiry, therefore, both the petitioners are entitled to the benefit of doubt and consequent thereupon be admitted to bail as prayed for.
4. Conversely, Khawaja Muhammad Khan Gara Advocate, counsel for complainant party and Ms. Shabana Gul Tajik Advocate for State opposed the bail of the petitioners by submitting that it is a daylight occurrence, wherein the petitioners alongwith their non-petitioner brother were directly charged in promptly lodged FIR for the commission of offence; that the occurrence was witnessed by independent witness Gohar Zaman, who in his Magisterial statement recorded on 15.02.2008 had directly charged the accused-petitioners for the commission of offence; that presence of all the accused is clearly indicated in the site-plan and specific role of firing was attributed to all the accused; that the medical evidence fully supports the prosecution case; that the petitioners introduced the plea of alibi in this Court which is clearly an after thought, therefore, the petitioners are not entitled to the concession of bail and their Bail application be dismissed.
5. I have already heard the arguments of either party and record carefully considered in the light thereof.
6. Before I discuss the factual aspects of the case, it will be advantageous to examine the principle of grant of bail. The Hon'ble Supreme Court of Pakistan in the case of Government of Sindh v.
Raeesa Farooq 1994 SCM R 1283 at Page 1295 has observed as under: "A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicions. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime.
If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then Court has the discretion to grant bail."
7. Keeping in view the above principle, I have examined the case of the prosecution in the light of the evidence collected by the investigating officer. It is apparent from the record that the accused- petitioners were charged for indiscriminate firing at the deceased as well as complainant from a short distance on the thoroughfare but the complainant miraculously escaped unhurt, whereas, Gul Rehman deceased received fire-arm injuries, which resulted in his death. The post-mortem examination of the deceased indicated that deceased Gul Rehman has received entry wound on his back, whereas, per prosecution version, he should have received entry wound on his front side; that statement of Gohar Zaman was not recorded on the date of occurrence rather his statement was recorded with the delay of two days on 09.12.2007 and no plausible explanation was offered therefor and on the delayed, date site-plan was prepared at his pointation, wherein to bring the prosecution case in line with medical evidence in the site-plan it was introduced that while running from the spot Gul Rehman received injuries on his back near the shop of Sabir but again Gohar Zaman while recording his statement under Section 164, Cr:P.0 on 15.02.2008 has not stated therein that Gul Rehman in order to save his life started running towards the shop of Sabir; that despite of the fact that the occurrence took place in a brought daylight but nobody amongst the public was associated in the investigation of the case; that neither any empty could be procured from the place of occurrence by the police nor despite of remaining in the police custody for four days any incriminating article could be recovered from the possession of the accused-petitioners, therefore, in peculiar facts and circumstances obtaining in the case, for all afore-noted infirmities and fissures in the prosecution case, the guilt of the accused-petitioners warrants farther inquiry. The investigation in the instant case is complete and the petitioners are no more required for investigation purposes, who are behind the bar since their arrest and it is not sure as to when the trial will be concluded against them. Therefore, in view of the resume of the case, I find that the petitioners have succeeded in making out a good case for grant of bail. Reliance placed on 2003 PCrLJ (Pesh.) 518 titled "Faqir Hussain vs. Asad Ali Khan", wherein, it was held that:- "S. 497--Bail--Benefit of doubt--Question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail--Benefit of reasonable doubt about occurrence itself identity of the accused, part allegedly played by him in the occurrence; his presence on the spot and on the question of his vicarious liability, would go to him even at bail state." PLD 1996 SC 241 Syed Amanullah Shah vs. 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."
8. For what has been discussed above, the Bail application of accused-petitioners namely, Muhammad Iqbal and Muhammad Shoaib both sons of Ghulam Idrees Khan, resident of village Tarnab Farm, Tehsil & District Peshawar, is hereby accepted, provided they furnish Bail Bonds in the sum of Rs, 2,00,000/- (Rupees two lacs) each with two sureties, each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate at Peshawar, who shall ensure that the sureties offered by the accused-petitioners are local, reliable and men of means. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.