ZABITA KHAN and 2 others vs THE STATE and another
This matter arose from a bail application filed before the Peshawar High Court by three accused-petitioners booked under Sections 324, 148, and 149 of the Pakistan Penal Code 1860, following the rejection of their bail requests by the lower courts. The prosecution alleged that the petitioners and co-accused fired upon the complainant, causing him injuries. The core legal question was whether the accused-petitioners were entitled to post-arrest bail given the circumstances of the medical evidence, the nature of the injuries, and the general allegations. The High Court granted bail, holding that the case required further inquiry. The Court observed that seven persons were charged for a single simple injury caused on a non-vital part of the body, an unexplained delay occurred in medically examining the injured despite the close proximity of the hospital, no specific role was attributed to the petitioners, and it remained to be determined whether they shared a common intention to kill.
- Whether charging multiple accused persons for a single simple injury on a non-vital part of the body makes the case one of further inquiry for the grant of bail?
- Whether an unexplained delay in the medical examination of the injured person when the hospital is nearby supports an application for bail?
- Whether the lack of a specific role attributed to an accused in a case involving vicarious liability justifies the grant of bail under Section 497, Code of Criminal Procedure 1898?
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
Having been involved in case vide F.I.R. No,1747 dated 10-12-2004 under sections 324/148/149, P.P.C. registered at Police Station Charsadda, the accused-petitioners applied for their release on bail in the Court of learned Senior Civil Judge/Judicial Magistrate, Charsadda but their application was dismissed vide order, dated 17-3-2005. Thereafter they moved the Court of learned Additional Sessions Judge-I, Charsadda but their application met the same fate when it was rejected on 4-4- 2005. Now they have moved this Court for their release on bail.
2. According to complainant, at the time of occurrence he came out from his house for the purpose of offering condolence/Fatiha Khawani on the death of mother of Razzaq and Raza Khan. In the street the instant three accused namely, Muhammad Ali, Suliman and Zabita Khan along with other co-accused, named in the F.I.R. duly armed, were present. The accused having seen the complainant, have started firing at him as a result of which complainant sustained injuries.
3. Mr. Arshad Abdullah, Advocate the learned counsel representing the accused-petitioners argued that seven persons were charged for effecting simple injuries on the non-vital part of the body of the injured.
4. It was also argued that the occurrence allegedly took place at 8 a.m. whereas the injured was examined at 10-30 a.m. although the distance between the place of occurrence and the hospital is only two kilometres.
5. He further argued that Aman and Noman two accused have already been released on bail by the learned Additional Sessions Judge-IV, Charsadda, therefore, the petitioners be released on bail.
6. On the other hand Mr. Imtiazur Rehman, Advocate learned counsel representing the complainant argued that it were the accused-petitioners and their co-accused who attacked the house/Hujra of the complainant and injured him. In fact the petitioners were aggressors and the injured was aggressed upon, therefore, they are not entitled for the grant of bail.
7. It was further argued that the case of the accused-petitioners falls under the prohibitory clause of section 497, Cr.P.C. and is punishable with ten years under section 324, P.P.C. and for the hurt caused also, therefore, they are not entitled for bail.
8. Mr. Muhammad Saeed Khan, learned Additional Advocate-General representing the State argued that there was a cross-case registered vide F.I.R. No,1746 which was not mentioned by the accusedpetitioners. The case of the prosecution was duly supported by the medical report and the statements of the P.Ws. recorded under section 161, Cr.P.C. hence the accused-petitioners are not entitled for the grant of bail.
9. I have heard the learned counsel for the parties at length and perused the record.
10. In this case seven persons were charged for a single injury at anterior aspect of right thigh mid way between hip and knee which was found simple. The occurrence took place at 8 a.m. but the injured was examined at 10-30 a.m., the distance between the place of occurrence and the hospital was only two kilometres. No reason whatsoever had been given for delay in examining the injured. No specific role has been attributed to the accused-petitioners. The injury caused to the complainant is on non-vital part of the body. It is, yet to be determined that the accused- petitioners shared common intention to kill the injured. A The case of the accused-petitioners would, therefore, fall in the category of further inquiry.
11.I, therefore, allow bail application in hand and direct that the accused-petitioners be released on bail provided they furnish bail bonds in the sum of Rs, two lac each with two sureties each in the like amount to the satisfaction of the learned Judicial Magistrate, Charsadda who shall ensure that the sureties must be local, reliable and men of means.