2010 Y L R 1077
[Quetta]
Before Ghulam Mu stafa Mengal, J
QAIM KHAN and 5 others ---Applicants
Versus
THE STATE ---Respondent
Criminal Bail Application No.208 of 2009, decided on 27th October, 2009.
Criminal Procedure Code (V of 1898) ---
----S.497 ---Penal Code (XLV of 1860), Ss.302/324 /34/147/148/149 ---Qatl-i-amd, attempt to
commit Qatl -i-amd, rioting ---Bail, grant of ---Accused were not nominated in the F.I.R. ---
Complainant and two eye -witnesses had implicated the accused in this supplementary
statements --No other incriminating evidenc e was so far available to prima facie connect the
accused with the commission of the offence ---Vicarious liability of the accused in the crime
would be determined at the trial after recording evidence ---Case against accused was one of
further inquiry ---Nothing incriminating had been recovered from the accused during police
investigation ---Accused could not be detained in jail for indefinite period and bail could not
be withhold as a punish ment ---Bail was allowed to accused in circumstances.
PLJ 1999 SC 727; 1997 PCr.LJ 494; 2000 PCr.LJ 1096; 1996 SCMR 1654; 1980 SCMR 784;
1994 SCMR 2051; 1997 SCMR 445; 1990 SCMR 346 and 2002 PCr.LJ 1532 ref.
Kamran Murtaza for Applicants.
H. Shakeel Ahmed, Muhammad
Rafique Langove and Malook Ahmed Langov for the C omplainant.
Zahoor Ahmed Shahwani, P. -G. for the State.
ORDER
GHULAM MUSTAFA MENGAL, J .---Through this application under section 498 Cr.P.C.
the applicants, Qaim Khan, Samiullah, Abdul Hameed, Muhammad Adeel, Saddam Hussain
and Abdul Hanan seek bai l in F.I.R. No.108/2009, dated 28 -8-2009 registered under sections
302, 324, 34, 147, 148 and 149 P.P.C. at Police Station Industrial Area, Quetta on the
application of Abdul Qudus son of Noor Muhammad by caste Langov, resident of Killi
Allahabad, Quetta.
2. The brief facts of the prosecution case, as disclosed in the F.I.R. are that on 28 -8-2009 the
complainant along with Muhammad Zaman, Muhammad Arif, Mehboob and Haji Ghulam
Muhammad, all by caste Langov, were present at Killi Allahabad near Railway Lin e, at about
12 Noon Behram Khan son of Fateh Muhammad, Jamil Ahmed son of Behram Khan, Saeed
Ahmed son of Lal Muhammad armed with T.T. Pistol while Ustad Fazal Son of Muhammad
Yousaf, Abdul Karim son of Umar Khan, Naveed Ahmed son of Nazir Ahmed, Ghous
Bakhsh son of Rasool Bakhsh by caste Zehri armed with Kalashnikov and Sajjad son of Ali
having an iron rod in his hand along with 5/6 unknown accused persons equipped with
Dandas came there, boarded in three vehicles. Ustad Fazal fired at Muhammad Zaman with
Kalashnikov due to which he died on the spot. Naveed Ahmed fired at Haji Ghulam
Muhammad with Kalashnikov, who received serious injuries on, his body; while Abdul
Karim fired at Muhammad Arif with Kalashnikov, who also received serious injuries on his
body and fell down; whereas, Mehboob was injured by the other accused persons; while the
complainant was hit by Sajjad with iron rod due to which he received fracture on his left arm.
On hearing firing Abdul Rasool son of Mosa Khan, Nisar Ahmed son of Malik Ja n
Muhammad, Muhammad Siddique son of Malik Karam Khan and other persons came there
thereafter the accused persons escaped leaving their two vehicles bearing registration
No.AAE -913 Sherad and AAD -462 Corolla Model 1982 in red colour. The complainant
along with other persons had taken the injured and dead bodies to Hospital. The motive as
stated in the F.I.R. was a dispute over a cricket match occurred on 27 -8-2009 between Farid
Ahmed son of Malik Jan Muhammad and Asad son of Wazir Khan and others with the s ons
of Ghous Bakhsh Zehri.
3. The applicants are not nominated in the F.I.R. but they were implicated in the
supplementary statements, which were recorded by the Police on 30 -8-2009 and 1 -9-2009.
4. In support of this bail application, learned counsel for the applicants submits that the
applicants are innocent and they have not committed any offence as alleged in the F.I.R. They
are not nominated in the F.I.R. He submits that applicant No.1 is a student, whose date of
birth is 11 -9-1993. He further subm its that the applicants have falsely been implicated in this
case by the complainant in his supplementary statement recorded on 30 -8-2009 and the
injured Muhammad Arif and Nisar Ahmed, whose supplementary statement has been
recorded on 1 -9-2009. He further contended that no recovery of any sort have been effected
from them, which makes the case of the applicants doubtful and of further inquiry, He further
contended that no specific roles have been assigned to the applicants in the supplementary
statements. The learned counsel in support of his contention placed reliance on the cases
reported as PLJ 1999 SC 727, 1997 PCr.LJ 494, 2000 PCr.LJ 1096, 1996 SCMR 1654, 1980
SCMR 784 and 1994 SCMR 2051.
5. On the other hand the learned Prosecution General and couns el for the complainant, who
opposing the bail application, submitted that the applicants are nominated in the
supplementary statement made by the complainant and two other eye witnesses namely Nisar
Ahmed and Arif (injured), which shows that the applicants were present on the spot and
participated in the occurrence with their common intention and the applicants are not entitled
to bail. The learned counsel for complainant has placed reliance on cases 1997 SCMR 445,
1990 SCMR 346 and 2002 PCr.LJ 1532.
6. I have heard the arguments advanced by the learned counsel for the parties and perused the
record with due care and caution. It is an admitted fact that the applicants are not nominated
in the F.I.R. It is also an admitted fact that the F.I.R. was lodged on the basis of statement of
complainant but latter on the complainant and two other witnesses implicated the applicants
in the commission of offence through their supplementary statements recorded by the
Investigating Officer on 30 -8-2009 and 1 -9-2009 but t hey have failed to explain as to how
they came to know the names of the accused/applicants, while they know each others prior to
the occurrence. Since the applicants are not nominated in the F.I.R. and they have been
implicated in the supplementary stateme nt by the complainant and two eye -witnesses; which
fact also brings the case of applicants within the ambit of further inquiry.
7. For the time being except the supplementary statement of the complainant and eye -
witnesses there is no other incriminating evidence on the record to prima facie connect the
applicants with the commission of offence. So far as the question of vicarious liability of the
applicants for the commission of offence is concerned, as per tentative assessment of the
record, that is to b e determined after recording the evidence of the prosecution. The
applicants were arrested on 30 -8-2009 and after completion of investigation they were sent to
the judicial custody but nothing has been recovered from the applicants during the
investigation . After perusal of the police file, I find no incriminating evidence against the
applicants to believe that they are connected with the commission of offence. The applicants
cannot be detained in jail for indefinite period, who even otherwise, have succeed ed in
making out a case of further inquiry and bail cannot be withheld as a punishment.
8. For the foregoing reasons the instant bail application is accepted and the applicants are
admitted to bail subject to furnishing bail bonds in the sum of Rs.2,00,0 00 each with two
sureties each in the like amount to the satisfaction of the learned trial Court. The observations
made hereinabove are tentative in nature and are not designed to influence the course of trial
in any manner.
N.H.Q./2/Q Bail allow ed.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,
let us know.