2004 PLP 1249 (YLR)

Date of hearing: 27th January, 2004. By this order, I tend to dispose of bail application moved on behalf of Muhammad Rustam petitioner who stands involved in case F.I.R. No.31 dated 3-5-2003 registered under section 302, P.P.C. read with section 7 of the Surrender of Illicit Arms Act, 1991 at Police Station Kirri Khaisore, D.I. Khan, at the instance of complainant Abdul Manaf, brother of Ghulam Abbas deceased.

2. The prosecution story in brief is that on the night of 2-5-2003 complainant Abdul Manaf was asleep in his house. At about 2245 hours he heard the report of fire shots. The complainant and his brother Niaz Muhammad noticed that their brother Ghulam Abbas deceased was not present on the cot. They found that one of the doors of the adjoining shop was opened. They entered into the shop and found Ghulam Abbas lying there in injured condition, struggling for life. On inquiry as to who has attacked him, he could not make any reply. After some times the victim succumbed to the injuries and expired. Two empties of pistol were found inside the shop. An electric tube was flashing. Nobody was charged in the report and unknown culprit/culprits were nominated for the murder of Ghulam Abbas deceased.

3. During the investigation of the case, statements of Muhammad Yaqoob, brother of the petitioner and one Muhammad Arshad son of Juma Khan were got recorded under section 164, Cr.P.C. on 3-5-2003. They charged the petitioner for the murder of Ghulam Abbas.

4. The petitioner was arrested from his house during raid on 4-5-2003. The petitioner moved applications before the forums below for the grant of bail which were declined vide orders dated 14-7-2003 and 30-7-2003 respectively. Hence, the instant application.

5. Mr. Sanaullah Shamim Gandapur, Advocate for the petitioner has pressed the plea of bail mainly on the ground that the petitioner is absolutely innocent and is a victim of a patently false charge, due to enmity with Muhammad Yaqoob, brother of the petitioner and Muhammad Arshad; that there is absolutely no evidence which could connect the petitioner with the commission of crime and that the Courts below had no valid reason to decline the concession of bail to the petitioner. He placed reliance on Ghulam Qadir v. State PLD 1967 Peshawar 267 and Muhammad Hassan v. The State PLD 1982 Lahore 551.

6. As against this, Muhammad Salim Khan Gandapur, Advocate for the State assisted by Mr. Muhammad Karim Anjum Qasuria, Advocate for the complainant opposed the, bail application and maintained that sufficient material has been collected by the prosecution which fully involve the petitioner in the commission of this crime and at bail granting stage, the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question, and hence, no detailed inquiry is to be made by the Court. To substantiate the pleas, reliance was placed on Abdul Aziz v. Saleh Muhammad and another 1990 SCMR 346 and Raza Mohsin Qazilbash and others v. Muhammad Usman Malik and another 1999 SCMR 1794.

7. I have heard the arguments and submissions of learned counsel for the parties at some length and have perused the record with their able assistance.

8. To consider the bail matter of an accused person involved in a non-bailable offence, if there appears reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497 Cr. P.C. The power conferred by section 497 Cr.P.C. is not arbitrary power. It has to be exercised by reference to material places before the Court and as to what that material should be. That material shall consist of accusation made in the report to the police, nature and credential or evidence which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The relevant circumstances including the evidence produced by the accused and bail has to be allowed or refused on the basis or this material. It follows that the Court has to make a tentative assessment in order to decide a bail application as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it.

9. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mina of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail in line with guidelines covering legal requirements.

10. In the instant case, material on record tends to connect the petitioner with the offence. In my view to enlarge the petitioner in presence of this material would only be possible if I tentatively declare that this material is not enough to connect the petitioner with the offence. In my opinion there is no such situation in the case. No doubt it is true that the petitioner is not named in the F.I.R. and unknown culprit/culprits are nominated for the commission of offence but it is equally true that the prosecution in possession of sufficient material to connect the petitioner with the commission of crime. The petitioner was arrested on 4-5-2003 and a pistol was recovered from his possession. The empties recovered from the site of offence and the pistol were sent to Fire Arms Expert, Peshawar for opinion. The microscopic examination revealed that the empties were fired from the pistol in question. The case-law cited by the learned counsel for the petitioner has no. relevance to the facts and circumstances of the case in hand. The same is distinguishable from the facts of the instant case.

11. Pursuant to above discussion, the bail application is dismissed being devoid of merit and substance.

12. It may be observed that the findings arrived by this Court are tentative in nature and would not influence the mind of the trial Court while deciding the guilt or innocence of the accused. H.B.T./37/P Bail application dismissed.