' By this order I intend to dispose of bail application moved on behalf of Badam Sher petitioner who stands involved alongwith others, in case F.I.R. No,679 registered at Police Station Badaber, Peshawar on 17-12-2001 under sections 302/324/148/149, P.P.C. At the instance of complainant Muhammad Ali. The petitioner filed an application for bail before Judicial Magistrate, Peshawar which was rejected on 24-1-2002.. The prayer of the petitioner for grant of bail was also turned down by Additional Sessions Judge, Peshawar through his order, dated 9-3-2002. Feeling aggrieved, the petitioner has approached this Court with the similar prayer.
2. The prosecution story in brief is that on the day of occurrence i,e, 17-12-2001 at about 2-30 p.m.
Muhammad Ali complainant and his co-villager Abid Khan, were present at the site of occurrence i,e, Shaheed Chowk Deh Mashukhel, District Peshawar when in the meanwhile, Zardad, Nishat, Farhad, Nawaz Khan sons of Awal Khan (absconding co-accused) and Badam Sher petitioner duly armed emerged from a nearby street and resorted to firing in consequence of which Abid and a passerby namely Asad son of Haji Israr Ali, got hit. Asad succumbed to his injury and died at the spot. The complainant escaped unhurt. Dil Nawaz son of Imtiaz was stated to have witnessed the occurrence. Previous enmity between the two families was said to be a motive leading to the turmoil.
3. Mr. Imdad Hussain Adil, Advocate for the petitioner in support of the bail application contended that there is no direct or circumstantial evidence to implicate the petitioner with the guilt; that the petitioner also sustained injuries on his person at the hands of the complainant party and matter was reported to the police promptly vide F.I.R. No,680, dated 17-12-2001 under section '324/34, P.P.C.
Police Station Badaber; that due to fear of the complainant some other persons were charged; that five persons including the petitioner are nominated in the F.I.R. For firing whereas only one wound is found on the chest of Asad deceased and thus, the question of vicarious liability at the best, can be decided at the time of trial and that in view of the tender age, the petitioner, is entitled for grant of bail. In support of the submissions the learned counsel placed reliance on Nazar Muhammad v. The State and another PLD 1978 SC 236, Muhammad Ayub and others v. The State 1987 SCMR 1906, Muhammad Ashraf v. The State PLD 1991 Lah. 347, Abdul Waheed v. The State 1994 PCr.LJ 2345 Lahore, Usman Ali v. The State 1996 PCr.LJ 166, Ibrar Hussain and another v. The State 1996 PCr.LJ 1679, Muhammad Mansha and another v. The State 1996 PCr.LJ 1981 Lahore, Mazhar v. The State 1997 MLD 1553 Lahore, Shahzamin v. The State and another 1999 PCr.LJ 256 Peshawar, Muhammad Ramzan v. The State 1999 PCr.LJ 1333 Lahore, Jalal and another v. The State and another 2001 PCr.LJ 1355, Anwar Khan v. The State 2002 PCr.LJ 400 Lahore, Abdur Razaq v. The State 2002 PCr.LJ 414 and Muhammad Nasim v. The State 2002 PCr.LJ 438 Karachi.
4. Mr. Abdul Karim, Advocate, learned counsel for the State assisted by Mr. Zeeshan Ali Kiyani, Advocate, counsel for the complainant opposed the bail application and maintained that prosecution is in possession of sufficient evidence to connect the petitioner with the guilt and discretion having been properly exercised by the Courts below, no case for grant of bail has been made out. He relied on Gul Muhammad Shah v. The State 2002 PCr.LJ 289 Karachi and Muhammad Yousaf and 5 others v. The State and others 2002 PCr.LJ 293 Peshawar.
5. It is not denied that the bail in a case of capital punishment is always granted or refused in the light of material placed before the Court and unless the Court comes to the conclusion that there was no reasonable ground to believe that a person has committed an offence punishable with death or imprisonment for life, he would not be entitled to claim the benefit of subsection (2) of section 497, Cr.P.C. Mst. Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56.
6. In Manzoor v. The State PLD 1972 SC 81 it was observed:-- "It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable case is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
7. The perusal of record shows that the petitioner is one of the accused persons and a specific role of firing has been attributed to him. Haji Israr Ali, father of Asad deceased has fully implicated the petitioner in his statement recorded under section 161, Cr.P.C. During the course of investigation 40 empties of 7.62 bore have been recovered from the spot. The medical evidence also supports the charge. At this stage, there is ample evidence against the petitioner on the record to suggest that there are reasonable grounds to believe that the petitioner is guilty of the offence covered by the prohibitory clause of section 497(1), Cr.P.C. The petitioner claims to have sustained injuries at the hands of the complainant per his report No,680, dated 17-12-2001 but it is significant to note that name of the complainant is missing from the report. So far as the question of vicarious liability is concerned it has already been pointed out above that a specific role of firing has been assigned to the petitioner and he cannot be allowed at this stage to take refuge under the umbrella of F.I.R.
No,680, dated 17-12-2001.
8. It is true that the date of birth of the petitioner per his school leaving certificate is shown as 4-1- 1985 and he was of tender age at the time of commission of offence but is equally true that minority, per se cannot be considered a good ground for release of an accused person on bail. The case-law produced on the point of minority is distinguishable and speaks of the different situation.
9. In the wake of above discussion I do not feel inclined to release the petitioner on bail. This bail application fails which is hereby dismissed.