2014 PLP 820 (YLR)

SYED AFSAR SHAH, J.

Accused/petitioners Inayatullah and Mir Alam involved in case F.I.R. No. 207, dated 2-8-2012, under sections 302/324/34, P.P.C., of Police Station Dadiwala, Lakki Marwat were refused bail by the learned Additional Sessions Judge-I, Lakki Marwat vide his orders dated 22-10-2012 and 16-7-2013. They have moved this further application through their counsel for their release on bail.

2. The allegations against the accused/ petitioners, as per F.I.R referred to above, are that on 2-8-2012, at about 2330 hours Waheedullah, the complainant brought the dead-body of his deceased brother Muhammad Bashir to the Police Station Dadiwala and made a report to the S.H.O of Police Station concerned to the effect that on the night of occurrence, he along with his brother Muhammad Bashir, father Shah Jahan and cousin Muhammad Hanif were on way to their newly-constructed house and when reached to the venue of occurrence, there accused Inayatullah and Barkatullah duly armed with rifles of 7.62 bore, already present near to the pond, started firing on them; that due to the firing of the accused, Muhammad Bashir and Muhammad Hanif were hit and fell on the ground, whereas he along with his father by taking shelter in the nearby washroom, luckily escaped unhurt; that the accused after the commission of offence fled away from the place of wardaat; that neither he nor P.W. Shah Jehan, being unarmed, could retaliate. Motive behind the occurrence, as stated by the complainant is a dispute between the parties on landed property. The occurrence in addition to the complainant is stated to have been witnessed by P.W. Shah Jehan. Here it is pertinent to note that Muhammad Hanif, who has sustained injuries in the occurrence, is also succumbed to the injuries on 3-8-2012.

3. It is the contention of learned counsel for the petitioners that since the occurrence is nocturnal, therefore, identity of the accused in the circumstances was highly impossible. He argued that the I.O. during the spot inspection has not recovered even a single empty from the venue of occurrence. He went on the say that both the complainant and eye-witness were in the firing range and since none of them have received even a scratch on their bodies, therefore, their presence at the scene of occurrence is highly doubtful. Developing his arguments he added that the entries made in the site plan, which admittedly has been prepared on the pointation of complainant and eye-witness, are totally inconsistent with the contents of First Information Report; that in the circumstances the case of the accused/ petitioners fall within the ambit of further inquiry.

4. As against that learned counsel for the complainant assisted by learned D.A.G. argued that no doubt it is a night occurrence, but the assailants have been identified in the light of moon; that it is a double murder case and in view of the direct charge the accused/petitioners are not entitled to the concession of bail; that the questions with respect to the mistaken identity, false implication on mere suspicion and alleged conflict between ocular account and site plan are issues which could safely be left to the trial Court to appreciate the same, as according to him at bail stage deep appreciation of evidence is absolutely unwarranted.

5. I have considered the submissions of learned counsel for the parties and gone through the record.

6. It appears from the record available on file that in this case the occurrence took place on 2-8-2012 at about 2230 hours, whereas the report has been lodged on the same night at about 2330 hours. Waheedullah is the complainant of the present case and he has charged the accused/petitioners for murder of the accused Muhammad Bashir and Muhammad Hanif and also for attempt on their lives, ineffectively. No doubt it is a night occurrence, but while going through the F.I.R one could reach to the conclusion that the complainant is stated to have identified the assailants/ accused in the light of moon. So far as, this contention of the learned counsel for the petitioner that neither the complainant nor P.Ws., despite the fact that they were also in the firing range, have received even a scratch on their bodies is concerned, I think he has misconceived the situation, in that at bail stage deep appreciation of evidence is totally unwarranted. Needless to say that questions regarding mistaken identity, inconsistency between the ocular account and site plan are the issues which could safely be appreciated by the trial Court. Reliance is also be placed on cases of Muhammad Abbasi v. The State and another (2011 SCMR 1606) and Rab Nawaz and another v. The State and another (2005 PCr.LJ 13)".

7. In view of above and while relying upon the material brought on record by the prosecution, which include F.I.R., statement of the eye-witnesses coupled with incriminating/circumstantial evidence, the petition for grant of bail stands dismissed. MWA/541/P Bail refused.