NAWAB ALI KHAN vs STATE and another
This is a criminal bail application filed by Nawab Ali Khan seeking post-arrest bail in a case registered under Sections 324/34 of the Pakistan Penal Code 1860 at Police Station Pezu. The core legal question was whether the petitioner was entitled to post-arrest bail given that he was directly charged with effectively firing at and injuring the complainant in daylight, supported by medical evidence, a site plan, and the recovery of crime empties, distinguishing his case from co-accused who were only charged with aerial firing. The Peshawar High Court dismissed the application, holding that the tentative assessment of the record reasonably linked the petitioner to the offense falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, thereby denying him the discretionary relief of bail. The court laid down the principle that an accused directly charged with effective firing supported by corroborative circumstantial and medical evidence is not entitled to bail on the ground of statutory consistency with co-accused whose roles are distinguishable.
- Whether an accused directly charged with effective firing in a daylight occurrence is entitled to post-arrest bail?
- Does the principle of consistency apply when the role of the bail-seeking accused is distinguishable from co-accused admitted to bail?
- Does the recovery of crime empties and supporting medical evidence constitute reasonable grounds to link an accused to an offense within the prohibitory clause of Section 497 Cr.P.C.?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
Nawab Ali son of Hathi Khan is charged in case FIR No, 26 dated 30/1/2008 of Police Station Pezu registered under Sections 324/34 PPC and after the rejection of his applications for bail by the learned Judicial Magistrate Lakki Marwat and learned Additional Sessions Judge-II Lakki vide orders dated 18/3/2008 and 29/3/2008 respectively, has filed the application in hand for the same relief.
2. Complainant, Muhammad Aslam Khan, had reported in injured condition to the local police in the police station that on the fateful day he was present near the house of his uncle Attaullah Khan on mettled road waiting for a vehicle when at about 1200 hours, Tariq son of Amir Hamza, Amir Hamza son of Abdul Samad and Nawab Ali son of Hathi Khan came there. Of them accused Nawab Ali armed with a Kalashnikov opened fire at him with which he was hit on right hand and abdomen, while the other two co-accused armed with .30 bore pistols made aerial firing. Motive for the offence as disclosed in the FIR was that a month prior. to the occurrence, Nawab Ali etc; accused had beaten Himayatullah, the cousin of the complainant.
3. Learned counsel for the petitioner argued with great vehemence that the version of the complainant as given in the FIR is not supported by his medical report, that for the solitary injury allegedly sustained by the complainant, three persons have been charged, that the injury as per medical examination has been declared simple, that the other two co-accused of the petitioner, namely, Amir Hamza and Tariq, having been released on bail by the learned Additional Sessions Judge-II Lakki through his impugned order, the petitioner too deserved to be treated equally and the instant case is counter to FIR No, 30 of the same date registered under Sections 324/34 PPC and, therefore, it is yet to be seen at trial that which of the party was the aggressor and which one aggressed upon. Hence, in these circumstances, he prayed for release of the petitioner on bail. In support of his contentions, reliance was placed on the judgments reported as Shaukat Ali Vs. The State (2001 YLR 2839) Allah Ditto and another Vs. The State (2002 M LD 150), Dilawar Khan Vs. The State and another (2004 YLR 43), and Mehboob Ahmad and two others vs. The State (2001 YLR 2841).
4. On the other hand, learned counsel for the complainant and learned Deputy Advocate General for State have strongly resisted the bail prayer of the petitioner on the grounds, inter alia, that he is directly charged by the complainant for effectively firing and injuring him in a day light occurrence, the prosecution case gets support from the medical evidence, site plan and recovery of crime empties of 7.62 bore from the scene of occurrence freshly discharged are sufficient to hold him guilty of the offence charged with and all these facts, when taken together, reasonably links him with the commission of an offence which falls within the prohibition contained under Section 497 Cr.P.C.
5. I have heard learned counsel for the parties and gone through the record thoroughly.
6. Perusal of the record, however, revealed that the accused/petitioner is directly nominated by the complainant for effectively firing and injuring him in a broad day light occurrence with a strong motive disclosed in the FIR. The report is lodged with all reasonable promptitude. The medical evidence, site plan and recovery of empties of 7.62 bore from the scene of occurrence fully supports the prosecution case. The case of the accused/petitioner is quite distinguishable from the case of co-accused admitted to bail as they were charged only for aerial firing which also negates the argument of the learned counsel for the petitioner that for a solitary injury, three persons are charged. The tentative assessm ent of the materials so far brought on record reasonably links the accused/petitioner with the commission of the offence charged with and from the available facts and circumstances of the case, the petitioner is not entitled to the discretionary relief of bail.
7. Consequently, I find no substance in this application which is hereby dismissed. However, the prosecution is directed to submit complete challan in Court within a month after receipt of record from this Court, whereafter the trial Court shall conclude the trial of the petitioner within four months. Record of the case be sent to the trial Court forthwith.
8. By a short order, 1 had dismissed this petition. The above are the reasons for the same.