WAJID ALI vs The STATE and another

ORDER

FAISAL ARAB, J.---The petitioner is an accused along with his brother Abdul Ghani in FIR No, 967 dated 01.11:20.15 registered under sections 302/324/148/149, P.P.C. at Police Station Badhber, District Peshawar. In the FIR it has been reported that on the fateful day when the' complainant and his uncle were busy in repairing the wall of their house, the petitioner and his brother armed with weapons came and the co-accused Abdul Ghani instantly fired at his father, who succumbed to his injuries and died on the spot. It is also stated in the FIR that then the petitioner also fired at the complainant, who got injured, whereas his uncle ran from the scene of the crime to save his life.

The petitioner after arrest applied for bail, which plea was rejected by the Trial Court. Petitioner's bail application before the High Court also met the same fate. Hence this petition.

2. Learned counsel for the petitioner argued that insofar as the petitioner is concerned, the only role attributed to him was that of causing fire arm injury to the complainant which is reported to be 'ghair jaifa', i,e, not falling within the prohibitory clause therefore bail ought to have been granted to the petitioner.

3. Learned counsel for the State, on the other hand, opposed the grant of bail on the ground that the petitioner along with his brother came with the common intention to commit murder and the father of the complainant was fired, upon and killed, therefore, bail was rightly declined to the petitioner. In support of his case, he placed reliance on the case of Munawar v. State (1981 SCM R 1092). In the cited case bail was declined to co-accused on the ground that there was common intention evident on the record.

4. In rebuttal, learned counsel for the Petitioner submitted that the case cited by the State counsel is not attracted as from the narration of the incident in the FIR in the present case .it cannot be said that there already existed common intention to commit murder. He placed reliance on the cases of Muhammad Irfan v. State (2014 SCM R 1347), Faqir Hussain v. State (2014 SCM R 1502), Inayat Khan'v.

State (1982 PCr.LJ 1000) and Muhammad Khalid Butt v. State (1993 PCr.LJ 1491) wherein there was absence of any material to prima facie establish common intention and, therefore, it was nature of injury caused by the co-accused that was made basis for grant of bail.

5. From the contents of the FIR, it cannot be out-rightly said that there was a common intention to commit crime. It prima facie appears that repairing of the common wall was the reason that provoked the accused. The conclusion that there was common intention can only be reached after the evidence in the matter comes on the record. So far as the role of causing injury on the person of the complainant is concerned, IA it is admitted position that the said injury was reported to be ghair jaifa. The petitioner in this view of the matter cannot be kept behind the bars for an indefinite period. In the circumstances, the petitioner has made out a case for post-arrest bail. This petition is therefore converted into appeal and is allowed and the impugned order is set aside. Petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,300,000/- with two sureties in the like amount to the satisfaction of Trial Court.