2011 Y L R 2807
[Quetta]
Before Muhammad Hashim Khan Kakar, J
Malik JAFFAR and 2 others ---Applicants
Versus
THE STATE---Respondent
Criminal Bail Application No.S -38 of 2011, decided on 12th August, 2011.
Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss.302 & 324---Qatl -e-amd and attempt to commit qatl-
e-amd---Bail, refusal of ---Accused were duly named in the F.I.R. and during the course of
investigation, accused were found to be involved in the commission of the alleged offence---
Allegation as contained in the F.I.R. was duly supported by the complainant and injured witness
in their statements recorded under S.161, Cr.P.C.---Record showed that deceased had died due to
injuries received by him by discharge o f firearms, which was supported by the ocular evidence;
as well as the external postmortem examination report---Presence of accused person on the spot
along with the absconding accused had been tentatively established from prosecution record as
well as fro m cross F.I.R.- Bail application was dismissed, in circumstances.
1999 SCMR 1360 and 1996 SCMR 1845 distinguished.
Nasir Muhammad Wassan and another v. The State 1992 SCMR 501(b) ref.
Sardar Ahmed Haleemi for Applicants.
Abdullah Kurd for the State .
Date of hearing: 5th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---Applicants Malik Jaffar Khan, Haji Abdul
Hakeem and Saleemullah, who are involved in case F.I.R. No.20 of 2011 dated 19 -5-2011,
registered with Police Station Saddar Mach, District Kacchi, under sections 302, 324 read with
sections 147 and 149 of the Pakistan Panel Code 1860, by filing this application, seek post -arrest
bail.
2. The allegation in the F.I.R., registered at the instance of complainant Babu Pukar son of
Shaheen Khan, caste Satakzai, resident Killi Gul Khan Mach, District Kacchi, was that on 19 -5-
2011, the applicants along with their companions Abdul Qadus, Muhammad Ishaque,
Muhammad Ismail, Nazeer Ahmed, Abdul Sattar, Zia -ul-Haq, Mangay Khan, Muhammad
Akram, Sarang and Wahid, attacked the complainant, his son Salam and Sona Khan with
firearms, which resulted the death of one Sona Khan and firearm injury to Salam on his leg,
while complainant miraculously remained safe. The motive behind the incident is s tated previous
enmity between the Sumalani and Satakzai tribes.
3. Sardar Ahmed Haleemi, learned counsel for the applicants, contended that cross cases have
been lodged by both the parties against each other and, at this stage; it cannot be ascertained as to
which party is aggressor and which party has been aggressed. He further stated that this itself
makes out a case of further inquiry in view of the fact that applicants are not hardened or
desperate criminal and are no more required by the police for t he purpose of investigation. He
also urged that a number of accused have been roped in the instant case, but no specific role has
been assigned to any one including the applicants. He, in support of his arguments, made reliance
on the judgments -reported in 1999 SCMR 1360 and 1996 SCMR 1845.
4. On the other hand, learned counsel for the State has stated that counter case was registered
after four hours of the present incident. The names of the applicants have specifically been
mentioned in the present F.I.R. and their roles have been certified and itself been confirmed by
them in the counter case i.e. F.I.R. No.21 of 2011, under sections 324, 436 read with sections
147 and 149 of the P.P.C., which is an afterthought. He also stated that keeping in view the
dictum laid down in case of Nasir Muhammad Wassan and another v. The State reported in 1992
SCMR 501(b), in a counter case, bail cannot be granted as a right. The attention of the court has
also been drawn to section 149 of the PPC, which reads as under:
"If an offence is committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that assembly knew to be
likely to be committed in prosecution of that common object, every person who, at the
time of committing that offence, is a member of the same assembly, is guilty of that
offence."
Learned State counsel has stated that section 149 of the P.P.C. is relevant, because the number of
the accused persons is more than five and each and every person, as per the contents of the
F.I.R., has participated in the crime, thus, they all are vicariously liable for the offence. It was
further contended that, prima facie, a case is made out against the applicants and bail cannot be
granted to them.
5. A tentative perusal of the record shows that the applicants are duly named in the F.I.R. During
the course of investigation, the applicants were found to be involved in the commission of the
alleged offence. The allegation, as contained in the FIR., is duly supported by the affectees i.e.
complainant Pukar Khan and injured witness Abdul Salam, in their statements recorded under
section 161 of the Cr.P.C. The contention of learned counsel regarding specific role has no legs
to stand, as section 149 of the P.P .C. furnish a complete answer to the said contention.
6. It appears from record that deceased Sona Khan had died due to injuries received by him by
discharge of firearms, which is supported by the ocular evidence as well as the external
postmortem examin ation report. Presence of the applicants on spot along with 'the absconding
accused has been tentatively established from prosecution record as well as from cross F.I.R.
No.21 of 2011 dated 19- 5-2011. The case -laws cited by the learned applicants counsel a re quite
distinguishable with the facts and circumstances of the present case.
7. In view of the above, I have no reason to differ with the order of refusal of bail made by the
trial Court. Application is, accordingly, dismissed, however, observations ma de hereinabove, on
the merits of the case, are purely tentative and the trial court shall not be influenced by them in
any manner whatsoever. The trial Court will consider the case purely upon independent
assessment of the material, uninfluenced by whateve r is stated above.
H.B.T./78/Q Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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