SHER ALAM KHAN alias VAKIL KHAN vs THE STATE and another

' MUHAMMAD SAFDAR KHAN SIKANDRI, J.---Having failed to get concession of bail from the courts below, petitioner Sher Alam Khan alias Wakil Khan has now come up to this court for seeking his release on bail in case F.I.R. No, 444, dated 10-11-2008 registered under sections 302/436/148/149, P.P.C. At Police Station Cantt. Bannu, District Bannu.

2. The allegations levelled by the complainant in the F.I.R. Against the accused petitioner are that on 9-11-2008 at about 1000 hours he along with his co-accused committed the murder of deceased Muhammad Ishaq, son of complainant Mst. Jehan Bibi by firing at him and also put on fire the house of complainant.

3. Learned counsel for the petitioner contended that there is inordinate delay of more than 24 hours in lodging the report which has not been explained by the complainant plausibly. He further urged that more than 7 accused are alleged to have made firing but no specific role has been attributed to any of the accused. He went on to argue that the deceased was allegedly surrounded by more than dozen persons, therefore, the causing of injuries to the deceased are not possible. He urged that the number of the injuries, do not commensurate with the number of accused and all these facts create doubt in the prosecution case for which the petitioner is entitled at bail stage. Learned counsel for the petitioner placed reliance on 2010 M LD 1114 Karachi and 2010 PCr.LJ 795 Lahore.

4. On the contrary, Mr. Farooq Akhtar, learned counsel appearing for the State assisted by privately engaged counsel for the complainant contended that the petitioner stands directly charge in the F.I.R. For the offence punishable for death or imprisonment for life. He contended that the petitioner remained fugitive from law for sufficient long time. He went on to argue that the story of prosecution is supported by medical as well as other circumstantial evidence and at this stage, the petitioner does not deserve the concession of bail. Learned counsel for the complainant placed reliance on 2009 PCr.LJ 472 Karachi and 2007 PCr.LJ 987 Karachi.

5. Viewing the arguments and going through the record, it appears that there is delay of about 24 hours in lodging the report by Mst. Jehan Bibi, mother of deceased Muhammad Ishaq which has been explained to the extent that she could not go to the Police Station due to fear, however, this much delay is fatal to prosecution in the long run as deliberations and consultations on the part of complainant party cannot be ruled out and any doubt arising in the prosecution case at bail stage will benefit the accused. Reference in this regard is made to the case of Riyasat Ali v. The State and another (2010 PCr.LJ 795 Lahore).

6. From the perusal of site plan, it appears that as many as 17 culprits including the petitioner are alleged to have opened fires at the deceased but the deceased has sustained three inlet would of firearm which do not commensurate with the number of accused nor it is certain at the moment that with whose fire shots the deceased succumbed to his injuries nor it is certain that how and up to what degree the petitioner shared common intention with his other accessories in spite of the fact that two of the accused namely Sadre Azam and Mir Azam were earlier released on bail and they have now been acquitted on the basis of compromise in this case with the complainant party.

In this regard, reference is made to the titled case of Baboo and 2 others v. The State (2010 M LD 1114 Karachi) where in such like situation, his Lordship extended bail to the accused in the case as it will be determined at the time of trial after recording the evidence as to whose fire shot proved effective on the person of the deceased and hence the case is one of further inquiry under the contemplation of subsection (2) of section 497, Cr.P.C. Besides this, as envisaged from the contents in the bottom of F.I.R., including the deceased one Khan Azam and other members of Taliban group were killed and injured in the said firing and in this regard, the complainant has suppressed some material facts from the police as well as the court at the time of lodging the report though lodged after sufficient delay of 24 hours which casts doubt on prosecution case and any doubt arising in the prosecution case at bail stage will benefit the accused for the purpose of bail.

7. Without going deep into the other merits of the case, I accept this petition and admit the petitioner to bail provided he furnishes bail bonds in the sum of Rs,2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, Bannu.