2008 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

This is an application for bail moved by the accused/petitioner Rahmatullah in case F.I.R. No.340 dated 1-11-2007 of Police Station Tank under section 302/34, P.P.C. Earlier, he has remained unsuccessful to get the said concession from the Courts of learned Judicial Magistrate Tank and learned Sessions Judge Tank vide orders dated 15-11-2007 and 6-12-2007 respectively.

2. It was on 1-11-2007 at 1330 hours that Rahamatullah reported to the police that on the fateful day he was present in his shop situated in Masood Market Tank when at 1000 hours his friend Suleman came and demanded motorcycle which was handed over to him and went outside. After half-an-hour, Suleman informed him on Mobile phone that he had to take money from one Gul Khan, resident of Bara Khel who was present in front of the Bahar Bakery where he (the complainant) should come. When reached there, Suleman asked him to accompany him to Bara Khel. Thus, they bath ride on the motorcycle and went to the house of Gul Khan but were informed by inmates of the house that Gul Khan had gone to Tank. Suleman Khan was driving the motorbike and when reached to Pukhta Road Bara Khel at 1230 hours, two persons with muffled faces armed with pistol and Kalashnikov appeared on the road and signaled them to stop. Suleman caught hold of the person armed with Kalashnikov but the other armed with pistol fired at him with which he was hit on his head, fell to the ground and expired there and then, whereafter the accused ran from the spot. Rahamatullah complainant lodged the instant report against unknown persons. However, on the same day, i.e. 1-11-2007, Ali Khel, brother of the deceased. Suleman, recorded statement under section 161, Cr.P.C. and charged the complainant Rahamatullah for committing murder of the deceased who was thus booked as an accused for the instant crime.

3. Learned counsel for the petitioner, argued that the accused/petitioner is innocent and falsely roped in the offence; that the prosecution case is based on hearsay evidence as there is no ocular account about the occurrence. That the story narrated by the petitioner in his initial report was correct and based on eye-witness account while the -subsequent narration of Ali Khel and Haji Alam Khan P.Ws. is the outcome of their own whims and mere fabrication and concoction on their part. That the alleged recovery from the spot and from the personal search of the accused/petitioner is also a mere fabrication having no nexus with truth to connect him with the commission of the offence and thus he is entitled to the concession of bail.

4. On the contrary, learned counsel for the complainant resisted the grant of bail to the petitioner on the ground that in view of the materials brought on record, he is reasonably connected with the commission of the offence. The weapon of offence recovered on pointation of the accused/petitioner together with the recovery of Mobile set and purse along with diary from his possession sufficiently connect him with the crime; that there was a loan dispute between the petitioner and the deceased and thus Ali Khel, brother of the deceased on the day of occurrence charged him in his statement under section 161, Cr.P.C. before the police and subsequently under section 164, Cr.P.C. All these facts disentitles him to the concession of bail.

5. Mr. Farooq Akhtar, learned counsel for the State, has also defended the impugned order on almost the same grounds agitated by the learned counsel for the complainant.

6. I have anxiously considered the arguments advanced at the Bar and thoroughly examined record of the case.

7. Though there is no eye-witness of the occurrence nor Ali Khel, brother of the deceased has furnished any ocular account therefore, but in his statement recorded under section 161, Cr.P.C. before the police on the day of occurrence, he has directly and singularly charged the accused/petitioner for committing murder of the deceased and subsequently too before the Court in his statement recorded under section 164, Cr.P.C. has affirmed his accusation. Besides the recovery of weapon of offence on pointation of the accused/petitioner, a Mobile Set, purse and a diary were also recovered from him. Therefore, the narration of the accused/petitioner in the F.I.R., seems to be totally artificial while the assertion of Ali Khel supported by Haji Alam Khan P.Ws. seems to be natural. The tentative assessment of all these facts prima facie connects the accused/petitioner with the commission of the crime which disentitle him to the concession of bail.

8. Therefore, in view of the dictum laid down in' the case of Muhammad Amin alias Irfan and another v. the Sate 2004 SCMR 1560, I find no merit in this bail application which is accordingly dismissed. H B T /87/P Bail refused.