2024 M L D 858
[Balochistan]
Before Rozi Khan Barrech, J
NOOR JAN and 5 others ----Applicants
Versus
The STATE---- Respondent
Criminal Bail Application No. 760 of 2021, decided 13th December, 2021.
Criminal Procedure Code ( V of 1898 ) ---
----S. 497--- Penal Code ( XLV of 1860 ) , Ss. 302, 337- H(2), 147, 148 & 149--- Qatl-i-amd,
rioting armed with deadly weapons, unlawful assembly--- Post arrest bail , grant of ---Delay
in reporting crime ---Mode and manner of the offence generalized in nature ---Allegation
levelled by the lady complainant against the petitioners (six in number) was that they
(petitioners) ,along with two nominated and three unknown persons, made firing causing death of her son---Validity ---Matter was reported to the levies after two and half hours of
taking the occurrence, whereas the inter -se distance between the place of occurrence and
Levies Station was 12 kilometers ---Inordinate delay qua the time of occurrence and
registration clearly revealed that possibility of deliberation and consultation could not be
ruled out ---Mode and manner of the offence were generalized in nature, which did not
specify any of the accused of causing injuries to the deceased---Even the weapon used by the accused was not described in the crime report ---Complainant nominated eight accused
and three unknown persons in the FIR with the allegation that all of them made firing upon the deceased , however, he (deceased) sustained only a single shot, whereas none of the prosecution witnesses sustained even a scratch--- Occurrence had taken place in the open and
if there would have been any intent on the part of the petitioners nothing could restrain them from committing the occurrence in the broader spectrum ---Record revealed that another
application had been moved by another person in respect of the same incident and the Investigating Officer had submitted two separate Challans in respect of two versions --- No
recovery , during the course of investigation, had been effected from the petitioners --- Said
aspects attracted provision of S.497 (2) of the Criminal Procedure Code, 1898 entitling the petitioners for the grant of bail ---Post-arrest bail was granted to the petitioners, in
circumstances .
Jameel Ramzan and Jameela Kakar for Applicants.
Yahya Baloch, APG for the State.
Date of hearing: 8th December, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through this application, the applicants Noor Jan,
son of Azam Jan, Muhammad Ayaz, son of Lal Muhammad, Muhammad Zahid, son of Muhammad Ayaz, Niaz Muhammad, son of Naik Muhammad, Sher Khan, son of Bar Khan and Baz Khan, son of Adam Khan seek post arrest bail in FIR No. 28 of 2021 of Levies Station Daman Bhaghao District Barkhan dated 18.06.2021 registered under sections 302, 337- H(2), 147, 148 and 149, P.P.C. on the complaint of Nazo Bibi wife of Muhammad
Siddiq which was declined to them by learned Sessions Judge Barkhan at Rakhni (trial court) vide order dated 29.11.2021.
2. Briefly stated facts of the case are that the complainant Nazo Bibi lodged the
aforesaid FIR with the allegation that on 18.06.2021 at about 6:30 am, she heard heaving firing from nearby mountains started when her son, namely Nawab Khan, was working in his field. She rushed out of her house and saw the accused persons while firing on her son. When she along with Mst. Baibo and Mst. Fatima, wife of Niaz Muhammad, went to rescue her son
Nawab Khan the accused persons Noor Jan, son of Azam Jan, Muhammad Ayaz, son of Lal
Muhammad, Muhammad Zahid, son of Muhammad Ayaz, Niaz Muhammad, son of Naik Muhammad, Sher Khan, son of Bar Khan, Baz Khan, son of Adam Khan and Mir Khan alias Meeray, son of Bakhtiar and three other unknown persons came out of their trenches and continued straight firing on her son who received multiple firearm shots and succumbed to
his injuries on the spot in her lap.
3. It is mentioned in the Levies Proceedings beneath the FIR that on the same date, one
Qaiser Khan (son of accused/applicant Baz Khan) also moved an application to Levies Thana
Bhaghao in respect of the same incident with the averment that on the same date i.e. 18.06.2021 at 6:40 am the accused persons Safar Khan son of Lakha, Siddiq son of Ayaz, Dost Muhamad son of Bashir, Atta Muhammad son of Niaz Muhammad, Noor Jan son of Lambaray, Khair Bakhsh son of Moj Ali, Hashim Khan son of Muhammad, Sohrab Khan son of Siddiq and Abdul Rehman son of Ramzan made firing on Ghulam Jan (brother of accused/applicant Baz Khan) and killed him. The Investigation Officer registered the instant FIR and submitted two challans in the court in respect of the version of the complainant and the accused/applicants.
4. At the very outset, it has been argued by learned counsel for the applicants that the
applicants have falsely been roped in this case against the actual facts and circumstances. Further contends that a wider net has been thrown by the prosecution while involving eight accused persons who are relative to each other. In the instant case it is further argued that the Medico -Legal report clearly reflects that there is only one injury sustained by the deceased.
Contends that the brother of the accused/applicant Muhammad Ayaz also lost his life, i.e. deceased Ghulam Jan, and on the application of the brother of the accused/applicant Baz
Khan a separate challan against the complainant party was submitted before the trial court in respect of the death of deceased Ghulam Jan, and it is a case of two versions. At this stage, it cannot be determined who were the aggressors and who was aggrieved. Lastly, it has been argued that as no recovery of any weapon has been effected from the accused/applicants, therefore, the case of the accused/applicants squarely falls within the ambit of Section 497(2), Cr.P.C. entitling them for a concession of post arrest bail.
5. Learned counsel appearing on behalf of the complainant, the learned APG vehemently
opposed the contentions raised by learned counsel for the applicants. It was argued that all the accused persons, in furtherance of their common intention, attracted to the place of occurrence; hence they are jointly liable for the offence committed by them. However, frankly conceded that the postmortem report revealed that there is only one injury available on the body of the deceased. Finally, it has been argued that the applicants are vicariously liable for the murder of deceased Nawab Khan; therefore, they are not entitled for a concession of bail.
6. I have heard the arguments advanced by learned counsel for the parties and also
perused the available record with their able assistance.
7. There is no denial of the aspect that the applicants are nominated in the crime report.
According to the contents of the crime report the occurrence took place in the morning at 6:30 am, whereas the matter was reported to levies at 9:00 am. Admittedly the inter -se
distance between the place of occurrence and levies station is 12 kilometers. Inordinate delay qua the time of occurrence and registration clearly reveal that possibility of deliberation and consultation cannot be ruled out. Apart from this, the mode and manner of the offence are generalized in nature. It does not specify any accused of causing injuries to the deceased. Even the weapon used by the accused is not described in the crime report. The complainant nominated eight accused and three unknown persons in the FIR with the allegation that all of them made firing upon the deceased Nawab Khan. However, the deceased sustained only a single shot, whereas none of the prosecution witnesses sustained even scratched. The occurrence had taken place in the open and if there would have been any intent on the part of the applicants nothing could restrain them from committing the occurrence in the broader spectrum.
8. It is further revealed from the record that in the same FIR another person, namely
Qaiser Khan, (son of accused, applicant Baz Khan) also moved an application in the said levies station in respect of the same incident with the averment that on the same date, i.e.
18.06.2021 at 6:40 am the accused persons namely Safar Khan, son of Lakha, Siddiq, son of
Ayaz, Dost Muhammad, son of Bashir, Atta Muhammad, son of Niaz Muhammad, Noor Jan, son of Lambaray, Khair Bakhsh, son of Moj Ali, Hashim Khan, son of Muhammad, Sohrab Khan, son of Siddiq and Abdul Rehman, son of Ramzan made firing on Ghulam Jan (brother of accused/applicant Muhammad Ayaz) received injuries and later on succumbed to the
injuries. The IO submitted two separate challans in respect of both versions of the
complainant and the accused. The aforesaid aspect bring the prosecution case squarely a case
of two versions attracting provision of section 497(2), Cr.P.C. Even during the course of the investigation no recovery whatsoever has been affected from the accused/applicants.
9. The custody of applicants would not advance the case of the prosecution in any
manner. Moreover, the august Supreme Court has held time and again that bail does not mean acquittal of the accused but only change of the custody from the Government agency to the surety who on furnishing bonds takes responsibility to produce the accused whenever required to be produced. Even otherwise, the authenticity of the accusation would be resolved by the trial court after the recording of evidence. I am constrained to give any finding at this stage lest it may prejudice the case of either party.
10. In view of the facts and circumstances and keeping in view the sufficient material
available on the record, I have persuaded that the case of the applicants squarely falls within the ambit of section 497(2), Cr.P.C. entitling the accused applicants for the relief sought for. As a consequence, the application is accepted. The accused/applicants namely Noor Jan, son of Azam Jan, Muhammad Ayaz, son of Lal Muhammad, Muhammad Zahid, son of Muhammad Ayaz, Niaz Muhammad, son of Naik Muhammad, Sher Khan, son of Bar Khan and Baz Khan, son of Adam Khan, are granted post arrest bail in FIR No. 28 of 2021 of
Levies Station Daman Bhaghao District Barkhan registered under sections 302, 337- H(2),
147, 148 and 149, P.P.C. subject to furnishing surety to the tune of Rs. 500,000/ - (five lacs)
each with PR bond of like amount to the satisfaction of Additional Registrar of this court/trial court.
The above observations are only tentative for the purpose of the decision on this
application which should not be used for influencing the adjudication of the case by any party, and these should be kept limited for the sole purpose of this application. The trial court has obviously to decide the case upon its own merits after application of judicial mind and independent conscience of the facts and circumstances of the case.
MQ/93/Bal. Bail grantedThis 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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