1994 P Cr (PLP)

Shah Ahmad Baloch for the Complainant. Date of hearing: 9th January, 1994. The petitioner who is involved in a case under section 302/324/34, P.P.C. arising out of F.I.R. No.87, dated 7-6-1993, registered at Police Station Saddar, Mianwali, seeks to be admitted to bail.

2. Briefly the allegation against the petitioner as per F.I.R. is that Hamid Ullah Khan alongwith his co-accused while armed with deadly weapon attacked the complainant party, as a result of which Meharban Khan lost his life and Nawab Khan received injuries on his person.

3. The learned counsel for the petitioner submitted that during the police investigation the police has registered a counter-case against the complainant party as two persons from the side of the petitioner namely Haji Saifullah Khan and Muhammad Ramzan were found injured, and this material fact has been suppressed by the complainant in the F.I.R. which makes the case of the prosecution doubtful against the petitioner. In addition to that, the police came to the conclusion after thorough investigation that Muhammad Khan from the complainant side fired at Haji Saif Ullah Khan which caused injury on his person, thereafter Haji Saif Ullah Khan in self-defence fired which caused fatal injury to Meharban deceased, hence the case against the petitioner is not free from doubt, so on this score alone the petitioner is entitled to the grant of bail. The learned counsel has also referred to the finding of the police to the effect that Hamid Ullah Khan petitioner was empty-handed at the time of the occurrence and the complainant party maliciously involved him in this case as principal accused and a fatal injury has been attributed to him, which is contrary to the record as well as to the investigation.

4. The learned counsel for the State has opposed this bail application on the ground that the police investigation is not based upon proper material. The learned counsel for the complainant submitted that the defence plea on the basis of which the police opined that it was Haji Saif Ullah Khan who fired at Meharban deceased, was not taken up by him in his statement recorded under section 161, Cr.P.C. on 24-6-1993 thus the finding of the police is contrary to the record. As Muhammad Khan complainant also received injuries in the same transaction, so his presence cannot be disputed, and he has categorically nominated the petitioner as the principal accused, who caused fatal shot to Meharban deceased. The learned counsel for the complainant further submitted that in order to arrive at a conclusion whether there exist reasonable grounds to believe that the case falls within the prohibitory clause or not, the Court at a bail stage has to rely upon the F.I.R. the statement of witnesses and any other evidence direct or circumstantial collected by the police during the investigation.

5. Applying the aforesaid principle of law to the facts of the present case, I find that the F.I.R. was lodged by the injured P.W. and he has specifically attributed fatal injury to the petitioner and all the eye-witnesses mentioned in the F.I.R. have supported the case of the prosecution to the hilt, hence there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause.

6. I have heard the learned counsel for the parties at length and have perused the record.

7. No doubt, the police in his report submitted under section 173, Cr.P.C. opined that Haji Saif Ullah Khan caused injury to Meharban deceased in self-defence when Muhammad Khan complainant injured him but this finding of police is not borne out by the record. Neither this defence plea was taken up by Haji Saif Ullah Khan in his statement recorded under section 161, Cr.P.C. nor he mentioned this fact in his statement which he made as an accused person before the police in this case, hence the opinion of the police is contrary to the record and baseless. The contention of the learned defence counsel that in the cross-case the complainant has been enlarged on bail is also devoid of force because at a bail stage, this Court has to examine the criminal liability of each and every accused on the basis of the material referred to above. The presence of the complainant who sustained injury in the transaction cannot be disputed as he and other eye-witnesses have specifically attributed the fatal shot to the petitioner, hence there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause. No case for grant of bail is made out, hence this bail application is dismissed accordingly. N.H.Q./H-113/L Bail refused.