2004 PLP 1151 (YLR)

S.497

Penal Code (XLV of 1860), S.302/34/449

Bail, refusal of

Accused was seen inside the house at small hours of the night and was duly identified by the complainant and other witnesses while running away after scaling over the wall-- Electric bulb, according to F.I.R., was on and the same if not mentioned in the site plan was a lapse on the part of the Investigating Officer

Deceased had lost his life due to fire-arm injury

Prosecution witnesses had woken up after hearing the fire-shot and had seen the accused near the cot of the deceased

Accused was, prima facie, connected with the crime on reasonable grounds--Offence was hit by the prohibition, clause of S.497(1), Cr.P.C.-- bail was refused to accused in circumstances. Muhammad Munir Gondal for Petitioner. Hafiz Muhammad Asghar Loung for the State. The petitioner has sought his post arrest bail in case F. I. R. No. 153 registered at Police Station, Bhong on 12-8-2002 for offences under sections 302/34, P.P.C. During investigation section 449, P.P.C. was added.

2. The relevant facts as given in the F.I.R. are; that the complainant, his brother Muhammad Rafiq, Muhammad Tayyab and Muhammad Tahir lived in one Ahata but in different houses. On the fateful night Muhammad Rafiq alongwith his family members and three other brothers of the complainant were sleeping in the Ahata when at about 3-30 a.m. the complainant, his brother Muhammad Tayyab, and Muhammad Usman alongwith other family members woke up after hearing a fire. They identified Ghazi son of Amir Bakhsh who was armed with a pistol and was scaling over the wall. The complainant party raised Lalkara, in response Ghazi petitioner fired in the air and ran towards the cotton crop. At that time he was accompanied by another accused. It was alleged in the F.I.R. that the complainant suspected that Ghazi alongwith Bhoora, Ahmad, Allah Weraya and another unidentified accused had murdered the complainant's brother Muhammad Rafique. The motive as set down in the F.I.R. was that the accused used to tease womenfolk of the Basti and Rafiq deceased brother of the complainant had asked the accused not to visit the Basti and was threatened by Ghazi petitioner.

3. The learned counsel for the petitioner submits that the story as given in the F.I.R. was implausible; that Rafiq was not resident of the village and the petitioner has been roped in this case due to previous enmity; that none of the witnesses had seen the petitioner firing at the deceased; that the identification of the petitioner at the time of occurrence was not possible as the electric bulb has not been shown in the site plan and that no recovery was effected from the petitioner. He has lastly argued that the petitioner was behind the bars since 15-9-2002 and there was no sight of early commencement of trial. Conversely, the learned counsel for the State has argued that the petitioner has been named in the F.I.R.; that the P. Ws. have supported the cast of prosecution in their statements recorded under section 161, CY.P C. and that the offence attract the prohibitory clause of section 497, Cr.P.C.

4. I have heard the learned counsel for the parties and have also gone through the record. It has been noticed that the petitioner was seen inside the house at small hours of the night. He was duly identified by the complainant and other witnesses while he was running away from the house after scaling over the wall. It is mentioned in the F.I.R. itself that the electric bulb was on and if the existence of electric bulb has not been mentioned in the site plan it shows a lapse on the part of the Investigating Officer because it is nobody's case that there was no electricity in the village. The deceased has lost his life due to fire-arm injury. The complainant and the P.Ws. had woken up after hearing the fire-shot and had seen the petitioner near the cot of the deceased. Even if it is presumed for the sake of arguments that the witnesses had not seen the petitioner firing at the deceased yet the evidence of the prosecution witnesses would remain relevant in view of the provisions of Article 19 of Qanun-e-Shahadat Order. Reasonable grounds exist to connect the petitioner with an offence which attracts the prohibitory clause of section 497, Cr.P.C. Thus, I find no merit in this petition and the same is dismissed. N.H.Q./G-4/L Bail refused.