ARIF JAN Versus State
This matter concerns a post-arrest bail application filed by the accused-petitioner, Arif Jan, facing charges under sections 324, 148, and 149 of the Pakistan Penal Code 1860, following the dismissal of his bail plea by the lower courts. The core legal question was whether the petitioner was entitled to the concession of bail given the specific circumstances of the alleged offence and the evidentiary material available. The Court held that the petitioner is entitled to bail, noting that while five accused were charged with indiscriminate firing, the complainant sustained only a single firearm injury, and the alleged source of light for identification was neither mentioned in the site plan nor recovered by the police. Furthermore, the Court observed that the petitioner's co-accused had already been granted bail without challenge. The Court established the principle that where the prosecution's narrative regarding the number of assailants and the resulting injuries raises significant doubt, and where co-accused have been granted bail, the case falls within the ambit of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, necessitating the grant of bail.
- Does the absence of a mentioned light source in the site plan constitute grounds for further inquiry in a bail application?
- When co-accused have been granted bail, does the petitioner become entitled to bail as a matter of right under the principle of consistency?
- Does a single injury sustained during an alleged indiscriminate firing by multiple accused warrant the grant of bail on the basis of further inquiry?
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
SHAH JEHAN KHAN AKHUND-ZADA, J.- --Accused-petitioner Arif Jan having failed to obtain concession of bail from the learned two Courts below in case F.I.R. No.530 dated 22-12-2012 under sections 324/148/149 P.P.C. registered at Police Station, Umarzai District Charsadda, has knocked the door of this Court for the same prayer.
2. According to the contents of the report, on 22-12-2012 at 19.30 hours Waqas Ali Khan complainant in an injured condition in the Casualty DHQ Hospital, Charsadda reported the matter to the police to the effect that on the same day at 18.30 hours he was present at the scene of occurrence, meanwhile Akhtar Munir, Faizullah, Zairullah, Inamullah sons of Shams and Arif Jan son of lnamullah residents of Shaukatabad duly armed with lethal weapons started firing at him as a result of which he got hit with the fire shot of Arif Jan. He identified the accused in the light of bulb which was lit in the way. Besides the complainant the occurrence is stated to have been witnessed by his father namely Sardar Ali Khan. The motive behind the occurrence was the connection of electricity.
3. I have heard the learned counsel for the accused-petitioner as well as the learned A.A.-G. for the State assisted by the learned counsel for the complainant and have perused the record.
4. It is well-established principle of law that deeper appreciation of evidence at the stage of bail is neither desirable nor permissible. However, tentative assessment of the material available on record shows that per allegations of the complainant the firing was made by all the five accused but he was hit with the fire shot of accused-petitioner. It is also alleged in the F.I.R. that the accused were identified by the complainant in the light of bulb lit at the relevant time but neither in the site plan there is any mention of the said bulb on the spot where the occurrence has taken place nor the same has been taken into possession by the Investigating Officer. In the instant case four brothers along with the accused-petitioner were charged for indiscriminate firing upon the complainant who was also accompanying his father but the complainant received only one firearm entry wound on his right leg which resulted in causing fracture to his Tibia Fibula. In such a situation where the complainant party was at the mercy of five persons but still he received only one firearm entry wound and that too on his right leg and his father escaped unhurt, calls for further inquiry particularly when the possibility of false implication at the moment in view of the tendency of the people to throw wide the net of implication to rope in even those who have no hand in the commission of the crime, cannot be ruled out. Furthermore, the four co-accused of the accused-petitioner have been released on bail by the lower Court but the complainant has moved no application for cancellation of their bail. Thus, in view of the above facts and circumstances case of the accused-petitioner falls within the ambit of subsection (2) of section 497, Cr.P.C. which entitles him for the concession of bail as of right.
6. Resultantly, this bail application is accepted and the accused-petitioner is ordered to be released on bail provided each of them furnishes bail bond in the sum of Rs.1,00,000 (Rupees one Lac) with two sureties each in the like amount to the satisfaction of the learned trial Court who shall ensure that the sureties are local, reliable and men of means.
The above are the reasons of my short order announced on 8-4-2013.
MWA/327/P Bail granted.