This is an application moved on behalf of above-named accused/ applicant who is facing trial before the learned Additional Session Judge-I, Quetta in Crime No,23 of 1999 under sections 324, 302 and 34, P.P.C.
2. The allegation against the applicant is that he alongwith co-accused Abdul Wadood and absconding accused Haji Abdul Manan and Sher Zaman being armed with Dandas made a murderous assault upon Abdul Wali. It is also stated that the applicant made aerial firing which did not hit anybody. Abdul Wali deceased who is stated to had received one blunt injury on the left temporal region of his skull fell down on the ground and succumbed to the injury in the hospital on the same day at about 5-50 p.m. This fatal injury according to the evidence has been attributed to absconding accused Abdul. Manan. The F.I.R. Was lodged by incorporating the Fard-e-Bayan of Abdul Ghafar on the same day at about 2-50 p.m. Being F.I.R. No,23 of 1999 under section 324, Qisas and Diyat Ordinance/P.P.C. Read with section 34, P.P.C. And section 302, P.P.C. Was subsequently inserted on the expiry of Abdul Wali, deceased in the hospital.
3. After usual investigation the applicant alongwith co-accused Abdul Wadood was sent to face trial before the learned trial Court. The names of Haji Abdul Manan and Sher Zaman were shown in column No,2 of the Challan as absconding accused.
4. On 21-5-1999, the learned trial Court framed charge against the applicant and others under section 302, P.P.C. For causing the death of Abdul Wali and under section 324, P.P.C. For making an attempt on the lives of Abdul Ghafar, Muhammad Ayub and Muhammad Ali, who was stated to have come at the spot at the time of occurrence. It is pertinent to note that there is nothing on record which can indicate that the applicant had caused any injury to complainant Abdul Ghafar who did appear before the trial Court as P.W.3 and to Muhammad Ayub who has given up by the prosecution. After production of six witnesses by the prosecution and giving up two witnesses, an application for grant of bail was moved. His bail application was rejected by the learned Additional Session Judge-I, Quetta vide order, dated 29-11-1999. The operative part of the said order is reproduced below for the sake of facility:-- "I have heard the learned counsel for the accused/applicants, D.A. For the State and I have also gone through the record minutely. It may be observed that the accused/applicants are nominated in the F.I.R. Lodged by complainant promptly without any delay. The prosecution produced also 3 witnesses i,e, P.W.3 complainant Abdul Ghafar, P.W.4 Mir Qalam and P.W.6 Abddullah Jan, all of the above witnesses nominated the accused/applicants in their statements. At this stage I am not going to discuss the merit of case minutely and found face of record, there is prima facie case to link the accused with the commission of alleged offence, as such, I am not inclined to grant bail to the accused/applicants. Resultantly, the application is stands rejected."
Hence this application.
5. I have heard Mr. Naeem Akhter, Advocate learned counsel for the applicant and Mr. Noor Muhammad Achakzai, learned Additional Advocate-General for respondent/State and perused the relevant record with their assistance.
6. The main contentions put forth on behalf of applicant are that---
(i) the applicant has falsely been implicated with the commission of offence on account of previous enmity and civil dispute;
(ii) the material prosecution witnesses have been examined and nothing has come on record which can connect the applicant with the commission of murder of deceased Abdul Wali;
(iii) there are material contradictions and omissions in the evidence creating doubts;
(iv) P.W. Salah-ud-Din who is independent witness has not supported the prosecution version and has been declared hostile while other private witnesses are interested and inimical towards the applicant.
(v) the applicant/accused was not present at the place of occurrence at the time of alleged incident.
(vi) no injury has been attributed to the applicant and the only injury which has been certified by the Doctor has been attributed to absconding accused Abdul Manan;
(vii) it is a case of further enquiry.
On the other hand the application has been resisted by the learned Additional Advocate-General by submitting that there was common intention and the act has been done in furtherance of common intention with co-accused and absconding accused persons. Reliance has been placed on the authority reported in PLD 1991 SC p.923.
8. Besides, lodging of F.I.R. No,23 of 1999 on 29-1-1999 at 2-50 p.m. By Abdul Ghafar son of Ali Gul in respect of instant occurrence which is stated to have occurred on 29-1-1999 at 2-15 p.m. Another F.I.R. Being Crime No,22 of 1999 under section 337, A.D./Q&D, 147 and 149, P.P.C. Was lodged by one Muhammad Umer son of Juma Khan for causing him Danda blows and injury by Mauladad, his son Muhammad Ismail and others in respect of occurrence which is stated to have taken place on 29- 1-1999 at 12-50 p.m. And report was lodged at about 2-10 p.m. The applicant also lodged an F.I.R.
Being Crime No,26 of 1999 on 2-2-1999 at 5-10 p.m. In respect of occurrence which is stated to have occurred on 29-1-1999 at 12-50 p.m. Nominating Ali Gul, Juma Gul, Muhammad Umer, Abdul Ghafar and Abdul Wali to have caused injuries to him and his son-in-law Abdul Wadood who is stated to have come out from his house and attempted to save him from the assailants.
9. P.W.1 Dr. Amin. Malghani who did appear as P.W.1 in cross-examination has admitted to have examined Abdul Wadood and Mauladad who were referred through Marasala by the Police.
According to medical evidence there was only one injury which has been found on the person of deceased and according to P.W. Mir Qalam it was accused Abdul Manan who gave Danda blows upon the head of deceased Abdul Wali as a result of which Danda was broken into two pieces and Abdul Wali fell down on the ground. As stated earlier the other role attributed to the applicant is of aerial and ineffective firing and there is nothing on record which can indicate that he had pointed his pistol towards deceased Abdul Wali who is stated to be at a distance of one or two faces from him at the time of making firing by the applicant. The question of vicarious liability of the applicant for the commission of offence under section 302 as per tentative assessment of the record is yet to be determined. The motive stated for this incident was over a dispute regarding the street which is stated to have been resolved between the parties and the notables had settled the same in favour of the applicant. Where grounds exist for further enquiry into the guilt of the accused, bail cannot be withheld. In order to ascertain whether reasonable grounds exist under section 497(2), Cr.P.C., the Court has of necessity to look into the material available.
10. The circumstances attending to his case bring it within the mischief of section 497(2), Cr.P.C. For further enquiry and the applicant/accused person is entitled for the grant of bail. Accordingly the applicant is admitted to bail subject to furnishing bail bonds in the sum of Rs,100,000 (rupees one lac), with two sureties in the like amount to the satisfaction of the learned trial Cowl. The present order should be viewed in the context of under-consideration application only.