' KHALID MEHMOOD, Petitioner Muhammad Mushaq seeks his release on bail in case F.I.R. No,207 dated 24-3-2011 under section 302, P.P.C. Police Station City Haripur, as he has been declined such relief by the Courts below.
2. Briefly stated the prosecution case is that on 23-3-2011 at 2350 hours complainant Nasir Elahi along with dead body of his brother Nusrat. 'Elahi at Emergency Ward DHQ Hospital, Haripur reported that they were present in the marriage ceremony of one Amir Shehzad, when in the meanwhile, accused Mushtaq started making firing on the eve of marriage ceremony but the pistol went up, resulting three bullet injuries to the deceased Nusrat Elahi, on various parts of his body, who succumbed to the injuries on his way to the hospital.
3. Learned counsel for petitioner argued that in the F.I.R. It has been mentioned, by the complainant, who is real brother of deceased, that accidentally the fire shots of accused petitioner hit the deceased and there existed no enmity. The said F.I.R. Was lodged on the information furnished by Ghulam Mustafa, who is an eye-witness of the occurrence and at his narration the complainant reported the matter to the local police. The complainant himself is a hearsay witness. After lodging of F.I.R. The local police had recorded statement of Ghulam Mustafa the only eyewitness of the occurrence. The - other witnesses namely, Tayyab, Mst. Ajaib Sultana and Nusrat all of them corroborated the story which was mentioned in the F.I.R. After nine days of occurrence i,e, on 2-4- 2011, Ghulam Mustafa eye-witness changed his version and recorded his statement under section 164, Cr.P.C. And charged the accused for Qatl-e-Amd of deceased and for the first time he stated that he also sustained injuries during scuffle with the petitioner, as he was asking the petitioner not to fire at the deceased. Learned counsel further argued that no reason for changing his version and deviation from the story, which was mentioned in the F.I.R., has been given before the I.O.
Moreover, the said eyewitness Ghulam Mustafa has never been examined by the doctor to submit his medical certificate regarding his injuries sustained during the scuffle. He also argued that none of the P.Ws. Had charged the accused for commission of Qatl-e-Amd, neither they have changed their stance in their statements recorded under section 161, Cr.P.C. He further argued that none of legal heirs of deceased had charged the petitioner for commission of Qatl-e-Amd. He also argued that it is categorically stated by all the P.Ws. That the cartridge was stuck in the pistol and during the effort to unstuck the same the pistol went off and suddenly hit the deceased. It was argued that offence committed by the accused petitioner at the most falls within the ambit of Qatl-e-Khata as there was no motive for the crime and there is no arms expert report regarding the fact that whether pistol was automatic or semi-automatic and further that three fire shots could suddenly be possible in a spur of moment or the three shots were fired one after another. In the prevailing circumstances, section 319, P.P.C. Is applicable for which payment of Diyat amount and five years punishment is provided and the offence is bailable. It was also argued that Ghulam Mustafa eyewitness in first stance does not charge the accused petitioner whereas in the second stance he categorically charged the accused petitioner For commission of Qatl-e-Amd. It was also argued that accused petitioner was not produced on 3-12-2011 before the trial court for obtaining judicial remand by the local police and as such it is clear violation of the law governing the subject-matter.
Learqd counsel added that many people were busy in firing and father of deceased restrained them from doing so and no source of light has been furnished by the prosecution. It was concluded that guilt of accused petitioner requires further inquiry. Reliance is placed on Attique Ahmed Kamal v. The State (2010 SCMR 748), Abbas v. State (2009 PCr.LJ 384), Abid Ali alias Ali v. The State (2011 SCMR 161), Muhammad Rafique v. The State ( 2003 PCr.LJ 1151), Ahmad Nawaz v. The State (2007 YLR 1041), Mst. Razia Begum v. The State (2011 PCr.LJ 873), Munk Ahmad v. The State (PLD 2000 Lahore 425), Yousuf Khan .v. The State (2000 PCr.LJ 203), Mir Aman v. Sardar Jehan (2010 YLR 1930), Suba Khan v. Muhammad Ajmal (2006 SCMR 66), Muhammad Ali and another v. The State (1985 PCr.1.1 603), Syed Azmat Ali Shah N. The State PLD 1999 Pesh. 39, Mst. Iqbal Bibi v. The State (1990 PCr.LJ 1831) and Ali Dost v. The State (2006 PCr.LJ 80).
4. On the other hand learned State counsel assisted by learned counsel for complainant vehemently opposed the bail petition and contended that petitioner is directly charged in the promptly lodged F.L R. It was argued that complainant fired three consecutive shots, at the deceased which hit him and proved fatal. The complainant, eye-witnesses and medical report supported the prosecution version and trial has commenced and let the trial court should decide the fate of the accused petitioner. Learned counsel further argued that accused was busy in aerial firing, which itself is illegal and during such an illegal act the offence has been committed and offence if not falls under section 302, P.P.C. Then apparently falls under section 322, P. P. C . , which carries punishment of 14 years and falls within the prohibitory clause of section 497, Cr.P.C. Pistol was recovered from the accused petitioner and Arms Expert report received is in positive. It was argued that petitioner has committed heinous crime, which falls within the prohibitory clause of section 497, Cr.P.C. It was also argued that judicial remand of accused petitioner was not obtained due to Moharrim and police was busy during those crucial days and could not produce the petitioner before the trial Court. However, petitioner is in judicial lock up under valid judicial remand. Learned counsel for complainant placed reliance on "Hafeez-ur-Rehman v. The. State"
(PLD 1993 Peshawar 252), Majid Naeem v. State and another (2011 SCMR 1227), Adil Naeem v. The State (2011 MLD 1273), Mst. Sughran. Bibi v. Sajjad Hussain and 4 others (2009 MLD 13), Muhammad..
Siddique and others v. The State (2008 SCMR 1459) and Ghulam Abbas v. The State (1993 PCr.LJ 43).
' A plethora of case-law has been cited by learned counsel for the parties.
5. Arguments heard and record perused.
6. A perusal of contents of F.I.R. Would reveal that in the marriage ceremony of one Amir Shehzad, the deceased Nusrat Elahi, his brother complainant Nasir Elahi and accused petitioner besides other many people were present there. It was alleged that accused Mushtaq started making firing, on the event of marriage ceremony but the pistol went up and hit three bullet injuries to the deceased Nusrat Elahi on various parts of his body, who succumbed to the injuries on his way to the hospital. Complainant has not advanced any motive for the crime.
7. Admittedly, Ghulam Mustafa eyewitness of occurrence has furnished two versions. The deceased sustained three consecutive fire shots injuries and succumbed due to these injuries there is nothing on record which could suggest that accused petitioner had any motive or intention to commit murder of deceased. The prosecution has also failed to prove any enmity of accused to murder the deceased, who like the accused was another participant in the marriage ceremony.
8. Without deep appreciation of the evidence collected by the prosecution, this Court confine to the contents of F.I.R., two version of star witness, namely, Ghulam Mustafa to avoid any verdict, which could influence the mind of the trial Court. From the perusal of record and arguments following points have been gathered:--
(i) There is no motive behind the occurrence;
(ii) Pistol was went up suddenly, which resulted the eventful incident;
(iii) No other P. W. .Except Ghulam Mustafa has charged the petitioner for Qatl-e-Amd including legal heirs of the deceased:
(iv) There is no report, of the Arms Expert regarding the kind of pistol whether same is automatic or semi-automatic.
9. Hence, in the light of the above stated admitted factual aspect of the case the question as to whether accused would ultimately be convicted under section 302, P.P.C. Or 322, P.P.C. Or would he be guilty under section 319, P.P.C., which is a bailable offence, would be determined after conclusion of trial.. In the facts and circumstances of the case the petitioner can be charged under section 319, P.P.C. And accused can be granted lesser punishment under the said section of law.
10. In this view of the matter, keeping petitioner behind the bars for indefinite period waiting conclusion of trial would serve no useful purpose. A tentative assessment of record would prima facie show that there exist reasonable grounds to believe that guilt of the accused petitioner requires further inquiry and pending such inquiry he deserves to be released on bail. However, finding of this Court had no bearing on the merit of the case, trial Court should decide the case independently in the light of the evidence produced by the prosecution.
11. Consequently, this bail petition is allowed and it is directed that accused petitioner be released on bail provided he furnishes bail bonds in the sum of Rs,5,000,000 (Rs,Five lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the C sureties .Are local, reliable and men of means. The observations given by this court are tentative in nature, trial Court should not be influenced by the same.