Having felt aggrieved from the bail dismissal orders of the Courts of Judicial Magistrate Bannu dated 27.8.2010 and Sessions Judge, Bannu dated 31.8.2010, the accused-petitioners have invoked the jurisdiction of this Court for securing the bail in case FIR No, 77 dated 19.7.2010 registered under Sections 324/427/34 PPC at Police Station Miryan, District Bannu.
2. The concise facts arising out of the prosecution case are to the effect that complainant Junaid Khan reported the incident to the local police in Emergency Ward of Civil Hospital, Bannu wherein he alleged that on the eventful day, he alongwith Inamullah proceeded on motorbike from their village. When they reached to the mettaled road of Lali Kaley near the residence of Gulley Khan at about 1800 hours, then (1) Gulley Khan, (2) Sher Daraz alias Sher Daraki, (3) Shah Noor and (4) Noor Ayaz were present there duly armed with .12 bore shotguns. When the complainant and Inamullah approached near them, the accused fired at them as a result of which both got wounded and fell down on the ground who were subsequently shifted to Civil Hospital, Bannu by the inhabitants of the area. The accused petitioners made good their escape from the scene of occurrence after the occurrence. The motive behind the occurrence is the result of grappling of accused-petitioners with Idrees, uncle of the complainant and hence, the present, occurrence.
3. Counsel for the petitioners contended that indiscriminate firing has been attributed to the accused petitioners but no-one out of the four has been directly charged for inflicting the effective injury to the complainant or PW Inamullah, therefore, this factum of the case will require further scrutiny at the time of recording evidence as to whether all these accused-petitioners have shared their common intention or otherwise and the case against the petitioners falls under the purview of sub-section (2) of Section 497 Cr.P.C. He further contended that the ocular account, site-plan and medical evidence are at variance which brings the case under the ambit of further inquiry because the places of petitioners are shown in the field of maize crop of one Khairullah and the identity of the petitioners was not clear to the victims. He further contended that dimension of Injury No, 1 caused to complainant Junaid on his right thigh has not been mentioned by the doctor whereas the other injuries are of (1/6)'' x(1/6)" diameter which are not the result of firing with shotgun. He argued that the empties recovered from the spot have neither been sent to F.S.L nor it is certain at present that these empties are ejected from one shotgun or different which will make the case one of further inquiry under the contemplation of sub-section (2) of Section 497 Cr.P.C. Counsel for the petitioners relied on 1997 P.Cr.L.J 1306 Lahore, 2004 P.Cr.L.J 1388 Peshawar and PLJ 2008 Cr.C.
(Peshawar) 158.
4. On the other hand, Miss. Naheed Akhtar, learned State counsel assisted by counsel for the complainant vehemently argued that irrespective of the dimension of the fatal injury caused to the victim by any one of the accused or all of them has resulted into the amputation of the leg of the victim and as such the accused-petitioners are not entitled to bail as they have been charged directly by name for sharing common intention to kill the complainant and PW Inamullah. He further contended that the occurrence has taken place at 06 p.m. in the month of July and visibility was there to make the complainant capable to identify the culprits even in the fields of maize crop and at present, the accused-petitioners are not entitled to bail being the offence falling under the prohibitory clause of Section 497 Cr.P.C.
5. I gave my considered thought to the above arguments and thoroughly perused the materials available on record before me.
6. As envisaged from the FIR, no doubt the complainant has charged four persons for inflicting injuries on his person but no specific role has been attributed to anyone of them that with whose fire shot he sustained the fatal injury on his thigh, therefore, in view of dictum handed down in 1997 P.Cr.L.J 1306 the accused-petitioners are entitled to bail as the matter will yet to be seen by the trial Court that under what section of law the accused-petitioners will be charged and what will be the quantum of sentence likely to be awarded after establishment of prosecution case as at present, there is no direct motive on the part of 'petitioners to kill the complainant and his companion except the trivial nature motive of the accused-petitioners with the uncle of complainant. Besides this, the injury has been caused on the non-vital part of the body of victim-complainant but it resulted into amputation of his leg, therefore, at the most the accused-petitioners will be charged for the offence of Itlaf-e-salahiyat-e-udw but till yet it is not certain before recording evidence that who is responsible particularly for the said injury nor it is yet certain on record that who, out of the four, has taken active part in firing because the F.S.L report is not presently available on the record to ascertain this fact nor the sharing of common intention on the part of culprits can be fixed, therefore, this factum of the case will require further probe and would bring the case under the ambit of one of further inquiry envisaged under contemplation of sub-section (2) of Section 497 Cr.P.C. If any authority is needed, reliance in such like cases can be placed on a verdict handed down by his Lordship of Peshawar High Court in PLJ 2008 Cr.C. (Peshawar) 158 where the bail was granted to accused.
7. Without touching the other merits of the case, I have been led to the conclusion that at present reasonable grounds exist for believing that the accused-petitioners have not been connected with the prima-facie guilt and hence, the case being falling against the accused-petitioners under the contemplation of sub-section (2) of Section 497 Cr.P.C., they are entitled to bail and hence, the application is accepted and the petitioners are admitted to bail on furnishing 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, District Bannu.