SALAT KHAN Versus ZIBAN SHAH

Having been involved in case vide F.I.R. No.894 dated 14-9-2001 under section 324, P.P.C. registered at Police Station Tangi (Charsadda), accused-respondent No.1 applied for his release on bail in the Court of learned Additional Sessions Judge, Tangi. His application was allowed and he was directed to be released on bail. Being not satisfied with the bail granting order, the petitioner/complainant has filed the application in hand for cancellation of bail granted to accused-respondent No. 1.

2. Mr. Abdul Jabbar Khan, Advocate the learned counsel representing the petitioner argued that accused-respondent No.1 was directly charged in the promptly lodged F.I.R.

3. It was further argued that the Medico-legal report was also in support of the prosecution case and there was sufficient material available on record to connect him with the commission of offence.

4. It was also argued that the Court below has enlarged accused-respondent No.1 on bail on the grounds which do not hold water in law; in that he was granted bail on the presumption that the offence committed by him would fall under section 337-E(ii), P.P.C. entailing three years punishment and Daman but the learned Court below failed to appreciate that the offence was punishable with ten years under section 324, P.P.C. and under section 337-E(ii), P.P.C. also, hence the case of accused-respondent No.1 would fall under the prohibitory clause of section 497, Cr.P.C.

5. It was further argued that the injuries caused to the petitioner were grievous in nature. There was " Italaf-i-Udw" as his hand has become useless, therefore, accused-respondent No. 1 was not entitled to be released on bail.

6. On the other hand, Hazrat Said, Advocate the learned counsel representing accused-respondent No.1 argued that there is no material available on record to connect accused-respondent No.1 with the commission of offence. He was charged with mala fide intention to restrain him from going to Saudi Arabia where he had planned to go.

7. It was also argued that neither any site plan was prepared by the Investigating Officer nor any blood-stained earth nor any empty was recovered from the spot which show that the occurrence did not take place in the manner as indicated by the prosecution.

8. It was further argued that the Medico-legal report was not in line with the prosecution case. In the F.I.R. accused-respondent No.1 was charged for firing with D.B. shortgun whereas the Medico-legal report do not show any pellet mark on the other part of the body of the complainant.

9. Ms. Farrah Attaullah Khan, Advocate, representing the State argued that accused-respondent No.1 was not entitled for concession of bail as he remained absconder for three years four months and 13 days for which he had no lawful explanation. Only submitting of photostat copy of Passport would not discharge him of his liability to show that why he had not surrendered while he was nominated in the F.I.R.

10. It was further argued that Medico-legal report was in line with the prosecution case and the eye-witnesses have supported the case of the prosecution case. Reliance is placed on 2004 PCr.LJ 962, 2004 PCr.LJ 921 and 200-4 PCr.LJ 1799.

11. I have heard the learned counsel for the parties and perused the available record.

12. The occurrence in this case took place on 14-9-2001 at 2000 hours whereas the F.I.R. was lodged on the same day at 2100 hours. There is no delay in lodging the F.I.R. The Investigating Officer prepared the site-plan on the same day in the light of torch. Neither any empty was recovered from the spot nor was any ' blood-stained earth taken into possession by the Investigating Officer. The locale of injury on the body of the injured show that the injury was not on the vital part of his body. Although accused-respondent No.1 was armed with .12 bore shotgun at the time of occurrence and the injured was at his mercy but he did not repeat the fire which show that he had no intention to kill him.

13. So far as the absconsion of accused-respondent No.1 is concerned, the learned counsel representing him produced a photostat copy of Passport which shows that he had left for Saudi Arabia for earning his livelihood and immediately after his arrival on coming to know of the registration of case against him, he surrendered himself before the concerned police.

14. The Court below has properly appreciated the material available on record. The bail granting order is neither perverse nor arbitrary nor fanciful and the same has not been obtained by fraud or mis representation. Moreover, accused-respondent No.1 has not misused the C concession of bail. I do not feel inclined to interfere with the impugned bail granting order. Resultantly, the bail cancellation application is dismissed.

H.B.T./418/P Appeal dismissed.