HAMID SAEED MALIK, J.---This bail application filed by Sakhi Zaman and two others was commonly heard together with Honourable Justice Shah Jehan Khan in a Division Bench and after considering the arguments advanced at the Bar, I came to the irresistible conclusion that the petitioners are entitled to the concession of bail, while my learned brother was holding a different view. Therefore, my independent view is based on the following facts and circumstances of the prosecution's case.
2.According to the first information report lodged by Muhammad Shakeel complainant on 14-8- 1997 at 0800 hours, on the eventful day he was going towards his fields and on reaching the 'Chowk' of his village, he noticed Sakhi Zaman and Akhtar Zaman, sons of Mir Sahib Khan and another Hamidullah Khan son of Khan Zaman standing near the grave-yard. On seeing the complainant, all the three armed with Klashinikovs opened fire at him with which he was hit on right leg and hand and fell to the ground, whereafter they decamped from the spot. Motive for the offence was disclosed to be previous blood-feud enmity between the parties and the occurrence was stated to have been witnessed by Haji Sher Nawaz son of Sher Zaman, their co-villager.
3.On the same day, one Muntazir Khan a close-relative of the petitioners lodged a cross-report bearing No,79 in the same police station charging as many as eleven persons for attempting at the life of the complainant and P.Ws by firing at them ineffectively with their Klashinikovs.
4.After the occurrence, both the parties applied for bail-before-arrest to the learned Special Judge Bannu which though was initially allowed but subsequently recalled vide his order dated 23- 9-1997. Thereafter, both the parties independently filed post-arrest bail applications before the same Court and the learned Special Judge vide his separate orders dated 24-10-1997 admitted the accused of the cross-case F.I.R. No,79 to bail but declined the same concession to the accused/petitioners, who have now come up to this Court through the application in hand.
5.Learned counsel for the petitioners prayed for their release on bail on the following grounds:-- (1)Firstly; that three persons are charged for inflicting two wounds on the person of the victim/complainant; (2)That the injuries sustained by the complainant were on non-vital parts of his body; (3)That the empties recovered are from point 'B' which is shown close to point '3' within a radious of eight feet; (4)That the petitioners are behind the bars for the last five months; (5)That though the petitioners are charged for effective firing at the complainant, but it cannot be said with certainity that whose shot proved effective; (6)That the instant case is a cross, to F.I.R. No,79 and the accused charged therein had since been released on bail and the rule or consistency, therefore, demands that the petitioners should be given the same treatment, and lastly; (7)That it is highly improbable at this stage that who amongst the parties was aggressor and aggressed upon coupled with the fact that the victim had since been discharged from hospital on 15-12-1997.
In the aforesaid circumstances, he was of the view that the case of the petitioners is of further inquiry entitling them to the concession of bail.
6. In rebuttal, learned counsel for the complainant and State opposed the aforesaid contentions by contending that the petitioners are directly charged for committing the offence in a broad-day light; duly supported by the P.W. and the medical evidence is in line with the prosecution version not entitling the petitioners to the concession of bail.
7. I am of the view that from the facts and circumstances of the case, a case for bail is made out. It is true that the petitioners are directly named in the F.I.R. for effectively firing at the complainant duly witnessed by the P.W. Haji Sher Nawaz, but since the victim/complainant had received two wounds on his person and that too on non-vital parts of his body, therefore, it is difficult to hold that from whose shot he was injured. Besides, the injured/complainant had since been discharged from the hospital on 15-12-1997 and the petitioners are behind the bars since 10-7-1997. i,e,, for the last five months. Above all, all the eleven accused of the cross-case F.I.R. No,79 had since been enlarged on bail and the principle of consistency demands that the petitioners be treated at par with them. It is the job of the Trial Court to ascertain that who amongst the two parties was aggressor and aggressed upon. All these facts when judged together bring the case of the petitioners within the ambit of 'further inquiry' entitling them to the concession of bail.
8. In consequence this application is accepted and the petitioners are directed to be released on bail provided they furnish bail bonds in the sum of Rs, fifty thousands with two sureties each in the like amount to the satisfaction of the Trial Court, who shall see that the sureties are local, reliable and men of means having considerable landed property on their names.
(Sd.)
Hamid Saeed Malik, J.
SHAH JEHAN KHAN, J.---Petitioners being charged for committing an offence punishable under section 324/34, P.P.C. vide F.I.R. No,78 dated 14-8-1997 of Police Station Kakki on their arrest applied for post arrest bail to the Special Judge, Bannu, which was refused to them vide order dated 24-10- 1997, have come to this Court for the said relief.
2.In nutshell the prosecution case is that Muhammad Shakeel lodged the report in injured condition, disclosing therein that on the eventful day at 7-15 hours he was going to his field to bring grass, on reaching the Chowk of his village, he noticed that the three accused-petitioners were standing nearby grave-yard and on seeing him all the three opened fire at him with the result that he sustained injury on his right leg and hand, and fell down on the ground. The occurrence was reportedly witnessed by Haji Sher Nawaz Khan who happened to be present near the Chowk. The motive behind the occurrence is blood-feud enmity. The site plan was prepared at the instance of eye witness Haji Sher Nawaz Khan. During spot inspection the I.O. took into possession 27 empty shells of 7.62 bore spread over an area of eight feet from the allocated to accused-petitioners. The 1.0 also noticed five marks of bullets on the wall of bathroom at the height of 2/4 feet and in 3 feet circular. Two spent bullets were also found beneath the wall.
3.The injured complainant was examined by Medical Officer on 14-8-1997 at 9.00 hours and found the following injuries: (1)One F.A.I. entry wound measuring 1/3" x 1/3" on the lower end of the right arm, posteromedial aspect.
(2)One F.A.I. exit 2" x 1" on the back of elbow joint.
(3)One F.A.I. entry wound 1/3" x 1/3" on the lower portion of right thigh front (Anterior aspect).
(4)One F.A.I. exit wound 2" x 2" on the front of right leg mid portion.
The condition of injured complainant was not found very satisfactory and was kept under observation.
4.The I.O. also examined Haji Sher Nawaz eye-witness mentioned in F.I.R. who suggested in toto the version of complainant.
5.All the three accused-petitioner went in abscondance and were proceeded under sections 87 and 204, Cr.P.C. Subsequently they applied for ad-interim pre-arrest bail on 9-9-1997 which was granted but later on recalled on 23-9-1997. On the same day i,e, 14-8-1997 at 10.40 hours one Nazar Khan also lodged a separate F.I.R. bearing No,79 for indiscriminate ineffective firing through Klashinikovs against eleven persons. The same F.I.R. was also investigated by I.O. But nothing to corroborate the alleged ineffective firing was detected. Neither any empty nor any mark of bullet of the indiscriminate firing through Klashinikovs was found. The parties in both the F.I.Rs, are not the same and even the site plan of both the occurrence are not the same. After conducting a thorough investigation F.I.R. No,79 was cancelled being a false counter-blast against F.I.R. No,78 of the instant case.
6.The learned counsel for the petitioner seeks the concession of bail on three fold grounds, firstly that due to counter-version of the incident, the responsibility of aggression cannot be placed at the shoulders of petitioners; secondly that the entrance wounds on the person of complainant does not commensurate with the number of accused; and thirdly that none of the petitioners has been specifically attributed the two inlet wounds caused to complainant. In these circumstances he maintained that case against the petitioners require further enquiry.
7.The learned counsel for the complainant while refuting the contentions of counsel for the petitioners argued that all the three accused-petitioners are reasonably connected with the commission of offence. Case F.I.R. No,79 cannot be treated as cross case because neither the parties nor the venue of occurrence is the same. Further submitted that points raised by opposite side amounts to deep appraisal which unwarranted at this stage and placed reliance on Shahzaman and 2 others v. The State and another (PLD 1994 SC 65).
8.The learned Assistant Advocate-General opposed the concession of bail to the petitioners.
9.We heard the learned counsel at the Bar and perused the record with the valuable assistance of the learned counsel. The contention of counter-version is without substance simply for the reasons that neither the petitioners nor the complainant/eye-witnesses of instant case F.I.R. No,78 are mentioned in F.I.R. No,79. Eleven persons are charged in F.I.R. No,79 by the complainant have no mention in the instant case. The two site plans prepared by I.O. at the pointation of eye-witnesses of the respective F.I.Rs, do not tally to each other. In these circumstances F.I.R. No,79 may be the outcome of instant case but not cross to it.
10.The second and third contention of the petitioner's counsel cannot be considered at bail stage, because deep appreciation of evidence is not required so that the trial should not be adversely efffected. On tentative assessm ent of the prosecution evidence, though the Medical Officer has noticed two entrance wounds on the person of complainant, but five stamps of bullets were also found on the walls at the high of 2-4 feets and 27 empties of Klashinikov in scattered form were recovered from the spot where presence of the three petitioners. In these circumstances none of the petitioners can be exonerated from the role of effective firing. Even if the firing of any of the petitioner if proved ineffective could not escape from conviction as under section 34, P.P.C. All the accused shall be responsible for the act done by one of them in furtherance of common object and intention. The ocular testimony duly corroborated by large number of empties of 7.62 bore two spent bullets, medical evidence coupled with absconsion'of petitioner immediately after the commission of offence establishes a prima facie case against them. If the prosecution evidence as it is left unrebutted at the trial all the accused individually and collectively may be punished for committing attempt to commit Qatl-e-Amd of petitioner with common object and intention.
11.This is also pertinent to be noted that a number of enquiries by different police officials were conducted on the applications of complainant in F.I.R. No,79 but in none of the enquiry complainant of the instant case has been blamed for aggression rather the repeated applications by complainant in F.I.R. No,79 seems to be an effort to restore F.I.R. No,79. Those findings of enquiry officers have no impact on the fate of present case.
For the aforesaid discussion I am not inclined to exercise the bail discretion in favour of accused petitioners. Consequently the instant bail petition is dismissed.
(Sd.)
Shah Jehan Khan, J JAWAID NAWAZ KHAN GANDAPUR, J.---In the case in hand, the petitioners stand charged for having committed an offence punishable under section 324/34, P.P.C. vide F.I.R. No,78 registered at Police Station, Kakki, District Bannu on 14-8-1997.
2. The petitioners applied for bail but the Special Judge, Bannu (Mr. Abdul Sattar Khan) by his judgment recorded on 24-10-1997 refused to extend the concession of bail to them. Hence, they have approached this Court for the redress of their grievance and have prayed that they be released on bail as they were innocent and falsely charged and were accordingly entitled to be released on bail not as a matter of grace but as a matter of right. They have further alleged that the complainant party has already been extended the concession of bail by the same Judge in the cross-case, registered Vide; F.I.R. No,79 dated 14-8-1997 under section 324/148/149, P.P.C., therefore keeping in view the golden principle of consistency in granting bail, they too were entitled to be granted bail.
3.The bail petition was heard by a Division Bench of this Hon'ble Court, comprising of His Lordships Mr. Justice Hamid Saeed Malik and His Lordship Mr. Justice Shah Jehan Khan Yousafzai.
4.Mr. Justice Hamid Saeed Malik on examination of the F.I.R. statements of the P.Ws recorded under section 161, Cr.P.C. and the other material collected during the course of investigation came to the conclusion that the case of the petitioners was that of further inquiry within the meaning of subsection (2) of section 497 Cr.P.C. and, therefore, they were entitled to be released on bail.
Accordingly he allowed bail to the petitioners in the sum of Rs, 50,000 with two sureties each in the like amount to the satisfaction of the Illaqa Magistrate by his judgment recorded on 11-2-1998.
5.A contrary view was taken by His Lordship Mr. Justice Shah Jehan Khan Yousafzai after having through the same material/record. His Lordship came to the conclusion that there were reasonable grounds to believe that the petitioners had in fact committed the alleged crime and, therefore, they were not entitled to be released on bail. He by his judgment dated 10-2-1998, declined to release the petitioners on bail.
6.The contrary conclusions arrived at by the two Hon'ble Judges of this Court necessitated the matter to be referred to His Lordship Mr. Justice Mehbub Ali Khan, the Hon'ble Chief Justice for further directions.
7.As directed by the Hon'ble Chief Justice, the Additional Registrar (Judi) Peshawar High Court Circuit Bench, D.I. Khan (Mr. Naseer-ud-Din Khan Gandapur) has placed this matter before me for decision.
8.Pir Liaqat Ali Shah, advocate learned counsel for the complainant/respondent No,2 (Muhammad Shakeel) failed to appear in the Court and his request for the adjournment of the bail petition was declined because he had not produced any Medical Certificate to show that he was sick and unable to attend the Court to argue the matter.
9.Mr. Dost Muhammad Khan, Advocate learned counsel for the petitioners and Mr. Ghazanfar Ali Bangash, Advocate learned counsel for the State present and heard at length.
10. I am quite conscious of the fact that the petitioners stand charged with for having committed a serious offence, therefore, I have gone through the record of the case as well as the two bail orders recorded by my learned brothers with great care.
11. It may be stated at the out-set that non-bailable offence can be divided into two distinct categories which are:- Firstly, the offences which are punishable with death, imprisonment for life or imprisonment for 10 years; and Secondly the offences which are punishable with imprisonment for less than 10 years.
12. It is now well-settled principle of law that in non-bailable offence punishable with imprisonment for less than 10 years, the rule is the bail and not the Jail. In other words, bail may be declined only in extra-ordinary/exceptional cases some of which may be enumerated as under:- (i)Where there is likelihood of abscondence of the accused; (ii)Where there is an apprehension of the accused tampering with the prosecution evidence; (iii)Where there is danger of the offence being repeated if the accused is released on bail; and (iv)Where the accused is a previous convict.
13. As far as the non-bailable offence punishable with death/imprisonment for life/imprisonment for 10 years are concerned, refusal of bail is the rule whereas grant of bail is an exception. It may, however, be noted that the Provisions of section 497(1), Cr.P.C. are not punitive in nature as there is no concept of punishment before judgment either in the criminal law or in the Islamic Jurisprudence, therefore, the question of grant/refusal of bail has to be genuinely/judiciously determined by the Court keeping in view of the facts and circumstances of each case. It would therefore, follow that:-- (i)where the prosecution convinces the Court that there are reasonable grounds to believe that the accused has committed the crime charged with then the Court must refuse to extend the concession of bail to the accused; and (ii)where the accused convinces the Court that reasonable grounds do not exist for believing that he has committed the offence/crime with which he has been charged then the Court must release him on bail.
14. It is, therefore, not incumbent upon the Court to conduct a preliminary al. It has only to look into the material collected by the Investigating Officer r and against the accused and to see as to whether or not a prima facie case is made out against the accused which, if not rebutted, may lead to the conclusion/inference that the accused has, in fact, committed the crime. Since deeper appreciation of evidence, available on the record, is not permissible at the bail stage, therefore, the Court shall not examine the merits of the case minutely the main, the Court has to look for reasonable grounds which may or may not connect the accused with the commission of the offence charged with rasonable grounds would, of course, mean grounds which may appeal to a asonable/prudent man. In other words, the bail order has to be a balanced der which is drafted carefully and weighed in the scale of justice/requirement relevant provision of law (Cr.P.C.).
15.It is pointed out, with concern that in our country there is a tendency involves innocent persons with the actual culprit. Therefore the benefit of reasonable doubt, about the manner in which the offence was committed, the identity of the accused, his presence on the spot, the part allegedly played by him and above all his vicarious liability etc., would invariably go to him even at bail stage. It may be remarked that whenever reasonable doubt arises regarding e participation of an accused person in the commission of the crime he shall be [titled to the concession of bail not as a matter of grace but as a matter of right cause there is a wide difference between the Jail life and a free life. As mentioned earlier the bail cannot be with-held as punishment. If an authority is needed, I am fully supported by case Tariq Bashir and 5 others v. The State, reported as PLD 1995 Supreme Court page 34.
16.In the case in hand one of my learned brothers, Mr. Justice Hamid Malik, on the examination of the record, is of the opinion that reasonable deeds do not exist for believing that the petitioners have committed the sentence. On the other hand, on the examination of the same material, the other learned Judge, Mr. Justice Shah Jehan Khan Yousafzai, has come to a different elusion i,e,, that there are reasonable grounds to believe that the petitioners connected with the commission of the offence charged with.
17.In my humble opinion, the mere fact that the two learned Judges have at different conclusion would automatically make the existence of onable grounds to connect the petitioners with the commission of the crime doubtful. Accordingly, the petitioners would be entitled to the benefit of because they have successfully made out a case of further inquiry within neaning of section 497(2), Cr.P.C. entitling them to be released on bail.
18. In view of what has been stated above I agree with Hon'ble Mr. Justice id Saeed Malik that the petitioners are to get bail.
19. This bail petition is therefore, accepted. The petitioners shall be released forthwith, if not required in any other case, provided each one of the] deposits bail money amounting to Rs,25,000 (twenty five thousand) with the Nazir of this Court.
(Sd.)
Sardar Jawaid Nawaz Khan Gandapur, J