Petitioners Irfanullah son of Hamidullah and Rehmanullah son of Subhanullah residents of Saidan Garhi Narshak, Tehsil and District Mardan seek their release on bail in case FIR # 370 dated 28.09.2011, under Sections 302/34 PPC of Police Station Choora as their bails were turn down by both the Courts below.
2. According to the prosecution story Mst. Gul Sayyat widow of Gulzar Ali made a report in casualty hospital Mardan to the Police stating therein that today at 1715 hours she came out of her house after hearing the noise from the street, where she saw that her husband and Sanaullah, Rehmanullah and Irfanullah were altercating with each other. Many other persons were also present there. In the meanwhile all the accused persons fired at her husband and due to the firing of Sanaullah her husband sustained injuries and died at the spot. The accused decamped from the spot after the occurrence: Her report was recorded in the shape of Murassala.
3. Learned counsel for the petitioner mainly contended that petitioners though named in the FIR yet are not charged for causing any injury to the deceased and only Sanaullah co-accused has specifically been named for committing Qatl-e-Amad of the deceased. No recovery of any empty was made from the spot nor any sign of bullet was noted during the spot inspection by the Investigation Officer. He also argued that allegation of firing if any remained ineffective and according to the report of complainant coupled with the medical report the deceased sustained only one fire-arm injury which negates the participation of petitioner in the crime. He lastly argued that net has been thrown wide to implicate more person in an unseen crime as the report of the occurrence was made with the delay of 4 hours which also has not plausibly been explained. In support of his arguments he placed reliance on the judgment SCMR 2009 page 299, PLD 1995 SC page 34 and SCMR 1999 page 1320.
4. On the other hand learned counsel for the complainant assisted by the State counsel vehemently opposed the grant of bail to the petitioners, and argued that accused petitioners are directly charged in the FIR for the commission of offence. Medial report supported the version of prosecution. He further argued that the accused petitioners remained fugitive from the law for a considerable period which remained unexplained. In support of his arguments he placed reliance on PLD 1985 SC page 157, PCr.LJ 2005 SC page 288 and PLD 2004 Peshawar page 160.
5. I have heard the counsel for the parties and have perused the record.
6. No doubt accused petitioners beside the co-accused are charged in the FIR by the complainant for the commission of offence but while reporting the matter to the Police the complainant herself ascribed the specific role of causing fire-arm injury to the deceased to co-accused Sanaullah only.
The accused/petitioners though remained absconder for sufficient time but the question of abscondence can better be decided by the trial Court after recording the evidence.
7. Admittedly petitioners are not charged for causing the fatal injuries to the deceased, no empties of any bore was recovered from the spot to substantiate the charge of firing by more then one person at the time of occurrence. Mere mentioning of name of person as acrised in FIR would not disentitle him to the concession of bail unless some other corroborative evidence is collected or brought on record to connect the petitioners with the commission of crime. As has held in a case reported in PLD 1995 SC page 34:-- S. 497--Bail--Accused of offences punishable with death, or imprisonment for life, or for ten years- -Grant/refusal of bail to be determined judiciously having regard 'to the facts and circumstances of each case -- Provisions of S. 497 Cr.P.C. are not punitive in nature as regards offences punishable with death, or imprisonment for life, imprisonment for ten years, for there is no concept of punishment before judgment in law-- Where the prosecution satisfies. the Court that there are "reasonable grounds" to believe that the accused has committed the crime falling in category of offences punishable with death, or imprisonment for life, or imprisonment for ten years the Court must refuse bail--Where, however, the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail--Court, for arriving at any such conclusion, is not to conduct a preliminary trial/inquiry but will only make tentative assessm ent--"Reasonable grounds" mean grounds which appeal to a reasonable and prudent man--Guidelines for Courts in disposal of bail cases furnished.--
8. So far as the abscondence of petitioners are concerned no doubt the abscondence does constitute relevant factor while deciding bail applications but accused cannot be refused bail only on the grounds of abscondence if he otherwise makes out a case for grant of bail.
9. In this view of the matter when accused/petitioners are not charged for causing any injury to the deceased and while seeking guidance from the dicta laid down in the afore mentioned i,e, PLD 1995 SC page 34, the accused/petitioners who have succeeded to make out a case for grant of bail, their application is allowed and they are admitted to bail provided they furnishes bail bond to the tune of Rs, 3,00,000/-with two sureties each in the like amount to the satisfaction of Allaqa/Judicial Magistrate who shall see that the sureties are local, reliable and man of means.