NOMAN SHAH and anothers vs The STATE and another

ASSADULLAH KHAN CHAMKANI, J.---Petitioners (1) Noman Shah 'and (2) Mutakib Shah, being unsuccessful before the learned Additional Sessions Judge Shabqadar to get the concession of bail, through this further application seek the same concession from this court in case FIR No.175 dated 30-3-2014, registered under section 324/34, P.P.C. At Police Station Abdul Hameed Shaheed Shabqadar, District Charsadda.

2. Allegations against the accused/petitioners as divulging from First Information Report are that, on the fateful day they along with their absconding co-accused Muareem Shah, while duly armed with deadly weapons and in furtherance of their common intention, in the fields of Nala Katozai, falling within the limits of Police Station Abdul Hameed Shaheed Shabqadar, attempted at the lives of complainant Mst. Waheed and her brother-in-law Siyana Khan, by firing at them, as a result, Siyana Khan was hit and severely injured, however, Mst. Waheeda luckily remained unscathed. The injured was shifted to Shabqadar hospital where Mst. Waheed lodged report. Motive behind the occurrence is stated to be previous blood feud.

3. Arguments of the learned counsel for the parties and learned A.A.-G. Heard and record perused with their valuable assistance.

4. It appears from the record that injured Siyana Khan has sustained a solitary injury, for which three accused have been charged. General role of firing has been attributed by the complainant to all the three accused without specification of fatal shot to any one of them. In the circumstances, shot of which of the three accused proved fatal and the vicarious liability of the accused in commission of the offence, are the questions which can only be answered by the trial Court after recording evidence, however, at the moment it makes the case of the accused/petitioners that of further inquiry into their guilt. Besides, I there is another FIR No. 176 dated 30-3-2014 registered under sections 324/452/148/149, P.P.C. At the same Police Station, which though, by virtue of variation in the venue of occurrence, cannot be termed as a cross case, however, the parties, date and time of occurrence of both the FIRs, are one and the same. In FIR No.176 Mutakib Shah (one of the petitioner herein) is the injured complainant and besides charging other co-accused has also charged accused Siyana Khan i.e. (the injured of the present case) for the offence. So there are two versions of the case, one furnished by complainant of the present FIR, while the other, furnished by complainant of FIR No.176. Which of the two versions is correct? Is yet to be determined by the trial court, after recording evidence. However, at the moment, this aspect of the case also makes the case of the petitioners arguable for the purpose of bail. The mere fact that punishment provided for the offence falls within the restrictive limb of section 497, Cr.P.C. Would not obstruct the way of bail, when otherwise, on merit the case of bail has been made out. It is B settled law that bail cannot be withheld as a punishment because a mistaken relief of bail can be repaired by convicting the accused after trial, if found guilty, but no proper reparation can be offered to the accused for unjustified incarceration.

5. For the reasons discussed above, this petition is allowed. The accused/petitioners are admitted to bail provided each one of them, furnishes bail bonds in the sum of Rs.3,00,000 (three lacs) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate/MOD, concerned. The sureties must be local, reliable and men of means.