MUHAMMAD ZAKARIYA and another vs STATE and another

This order will dispose of the above captioned bail application as well as connected bail applications titled Gulab Shah Vs. State and Ashraf Ali etc Vs. The State bearing Cr. Misc: No, 288/2008 and Cr. Misc: No, 291/2008 respectively as these bail applications arise out of the same FIR and involve a common question of law and facts.

2. Having failed to secure post arrest bail from the Court of Mr. Aurangzeb Khan, Judicial Magistrate-IV, Peshawar and Mr. Muhammad Asim Imam, Additional Sessions Judge-III, Peshawar.

The petitioners have filed the instant bail application.

3. The story of the prosecution as narrated in the FIR No, 89 dated 4.3.2008 of Police Station, East Cantt: under Sections 347/506/148/149 PPC is in the following words. Saeedur Rehman complainant on 4.3.2008 at 2140 hours made a report to Noor Muhammad Sub-Inspector on the spot, that he alongwith his brother Gul Jamal and Haji Manan had come to Dabgari Garden for clinical test in City Laboratory, Peshawar, they were waiting out side the Laboratory while in the meantime Ihsanullah, Imranullah sons of Gul Faraz R/o Sara Khora at present Murshid Abad Kohat Road, Peshawar Abdur Rauf son of Muhammad Ismail R/o Darra Adam Khel, Gulab Shah son of Noor Muhammad R/o Nauthia Mushtaq Abad alongwith two others un-known persons came in three motor cars bearing No, 7803 LZM, 355 ABN and 1376 Peshawar they caught hold of the brother of the complainant Gul Jamal and was made to sit in 7803 LZM on resistance by the complainant he was given beating and thus Gul Jamal was kidnapped by the accused/petitioner. Motive for the occurrence was stated to -be money dispute between the parties. It was also alleged that while decamping from the spot the accused also resorted to aerial firing in order to intimidate the complainant, thus, the accused/petitioners were charged alongwith two others unknown persons for the commission of the offence. Occurrence was stated to have been witnessed by the persons present there.

4. As the police was on routine gusht the report was made to Noor Muhammad ASI Incharge Police Station, Civil Quarters Peshawar, which was reduced into writing in the shape of murasila, which was incorporated in the FIR, referred to above.

5. The local police initially registered the case under Section 1365/506/148/149 PPC but subsequently Section 365 was changed into Section 347 PPC. When these bail applications came for hearing before this Court. Saeedur Rehman complainant-respondent No, 2 recorded his statement that he has effected compromise with the petitioners and would not oppose their bail application. Further stated that he had no objection if the accused/petitioners are released on bail.

6. It was contended on behalf of the learned counsel for the petitioner that the alleged occurrence as narrated in the FIR is not backed by any evidence and the same is not proved on the record of the case. It was also argued that dispute between the parties was of money matter and the allegations contained in the FIR do not attract the section of law with which the accused/petitioners have been charged. It was also argued that the section of law with which the accused/petitioners charged does not come within the prohibitory clause of Section 497 Cr.P.C. thus it was prayed that the accused/petitioners are entitled to the concession of bail besides the fact that the complainant has also recorded his statement and have given a consent to the release of the petitioner on bail.

7. On the other hand learned counsel for the State as well as private counsel for complainant did not oppose the bail application in view of the consenting statement of the complainant.

8. I have gone through the record of the case and have heard in detailed the learned counsel for the parties. Perusal of the record reveals that firstly Section 365 as well as the changed Section 347 are not compoundable and mere compromise would not entitle the accused to the concession of bail.

9. Without commenting on the merits of the case, so that it may not prejudice the case of either of the parties during the trial. Suffice is to say that the offence of which the accused/petitioners are charged does not come within the Prohibitory clause of Section 497 Cr.P.C. as maximum sentence provided for the offence under Section 365 is seven years and under Section 347 of Pakistan Penal Code is three years. So in cases which are not hit by prohibitory clause of Section 497 Cr.P.C. the grant of bail is a rule and refusal of the same is an exception to that rule. Further more the statement of the complainant recorded on oath has also mitigating effect.

10.In view of the facts and circumstances of the case narrated above, these bail applications are accepted and the accused/petitioners are released on bail provided they furnish bail bonds in the sum of Rs, 2,00,000/- (Rupees two lacs) each with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.