2015 PLP 571 (YLR)

MUHAMMAD DAUD KHAN, J.--Having unsuccessful in obtaining bail from the court of learned Additional Sessions Judge-I, Lakki Marwat, Rifatullah, the accused/petitioner, who is involved in case F.I.R. No.386, dated 22-12-2012, under sections 302/324/148/149, P.P.C. of Police Station Ghazni Khel, Lakki Marwat has come to this Court for the same relief.

2. The allegations against the accused/ petitioner as per F.I.R. referred to above are that on 22-12-2012 at 0830 hours, Abdul Qayum, the complainant along with deadbody of his brother Javed Khan, in emergency room of Civil Hospital, Lakki Marwat, reported the matter to Muhammad Ismail Khan S.H.O., to the effect that on the fateful day he along with his brother Javed Khan and nephew Nisar Ali had gone to the nearby fields in order to reply the call of nature and after easing themselves they were coming back to their home; that his brother Javed Khan was ahead, while they were following him, when they reached at a thoroughfare at about 07.30 hours, the accused/petitioner Rifatullah, duly armed with Kalashnikov was already present there; that when they reached near him, he (the accused/petitioner) called him (the deceased Javed Khan) that though the compromise has been effected, but even that he would not be spared today and made a single fire-shot with his Kalashnikov, as a result of which he was hit, sustained injury and fell down. When the complainant and his nephew tried to attend the injured, in the meanwhile, accused Taj Ali, Muhammad Yaqoob Khan, Barkatulah, Abdul Hameed, Saminullah, Inshaullah, duly armed with Kalashnikovs appeared and reprimanded them not to come close the deceased and each of them made a single fire shot, but they luckily escaped unhurt. Accused after commission of the offence decamped from the spot. The occurrence has been witnessed in addition to the complainant by his nephew Nisar Ali. Motive behind the offence as alleged by the complainant is that some one and half month prior to the occurrence, counter firing was made between the parties, which matter was duly reported in the Police Station, but later on it was patched up by elders of the illaqa, but despite that the accused/petitioner along with co-accused committed the offence. The report was incorporated, in shape of murasila. Ismail Khan S.H.O. prepared injury sheet and inquest report and sent the body of the deceased for post mortem examination under the escort of Constable Samiullah No.735, whereas the murasila was sent to the Police Station, which culminated into registration of above mentioned F.I.R.

3. It is the contention of learned counsel for the petitioner that he (accused/petitioner) is innocent and has been charged by the complainant falsely for ulterior motive; that the dead-body was taken from the place of occurrence to the hospital, whereas the Police Station Ghazni Khel, comes in the way, but malafidely went to the hospital, so as to cover the alleged delay of one hour occurred in lodging the report, on the direction of Mir Ahmad Khan, S.H.O., Police Station Tajori, who is brother of deceased and complainant; that at the time of occurrence, the accused petitioner was not present in his village, as he is a student of M.Com and was residing in Hostel in the Peshawar University, Peshawar, hence on the basis of plea of alibi, the accused/petitioner is entitled for the concession of bail. Learned counsel for accused/petitioner further contended that the story of F.I.R. is not attracted to the prudent mind; that the complainant has spread a wide net and implicated seven persons of a family; that prosecution case is full of doubts for which accused/petitioner is entitled even at bail stage.

4. As against that learned counsel for the complainant assisted by learned D.A.G. vehemently opposed the arguments advanced by learned counsel for the accused/petitioner. They argued that the occurrence took place at broad-daylight and the accused/respondent along with other co-accused are co-villagers, hence, no question of misidentification arises; That the accused/petitioner along with co- accused are directly charged in a promptly lodged F.I.R." hence no question of false implication arises; that the F.I.R., recovery memo, report of FSL, firearm expert report, PK report, further supplement the prosecution case; that the offence for which the accused/petitioner is charged comes within the prohibitory clause of section 497, Cr.P.C.; that in the F.I.R. the accused/petitioner has been given the role of effective firing at the deceased, which is different from other co-accused who have been released on bail, hence, he cannot claim the concession of bail under the rule of consistency: He lastly argued that the accused/petitioner has not produced any cogent evidence to prove the plea of alibi, hence, the petitioner cannot take its benefit at this stage, as such this petition is liable to be dismissed.

5. I have considered the submissions of learned counsel for the parties, D.A.G. for the State, and gone through the record, with their valuable assistance.

6. It appears from the record available on file, that in this case the occurrence took place on 22-12-2012 at about 07.30 hours, whereas the report has been lodged on the same day at about 08.30 hours, after a delay of one hour and the distance between the place of occurrence and the Police Station, as stated in the F.I.R. is 5/6 KM, hence keeping in view the distance and time of occurrence, the delay as alleged by learned counsel for accused/petitioner is not so fatal to be considered at bail stage.

7. Perusal of the F.I.R further transpires that the accused/petitioner is directly charged for murder of the deceased in broad-daylight, witnessed by the complainant and his nephew. The parties being co-villages inter se there is no chance of misidentification. The PM report indicates that there is a single firearm entry wound of 1/4 x 1/4 inches on right lower chest of back and an exit wound on front side of right upper chest above the right nipple, which fully corroborate the F.I.R. and recovery memo. Moreover, the complainant in his first information report has given a specific motive behind the offence. When all these material pieces of evidence taken in juxtaposition, a prima facie case is made out against the accused/ petitioner.

8. It is the contention of learned counsel for accused/petitioner that co-accused have been released on bail by the lower courts, hence, under the rule of consistency, the, accused/petitioner is also entitled for the same relief, while perusal of the record reveals that the accused/ petitioner has been attributed a specific role of effective fire-shot on vital part of the body of deceased, whereas the other co-accused, who have been released on bail, have been assigned the role of ineffective firing, as such his case does not fall under the rule of consistency.

9. The contention of learned counsel for petitioner is that the accused/petitioner was a regular student of M.Com in Peshawar University, Peshawar and at the time of occurrence he was not present at the venue of wardaat, rather he was living in the hostel at Peshawar. In view of substantial positive evidence in support of prosecution version, when otherwise there is no room for further inquiry, the plea of alibi cannot be taken into consideration, at bail stage, by introducing some documents, which evidentiary value would be determined after recording evidence at the trial. If such practice is allowed to perpetuate, every accused would procure some documents and witnesses to get their statements recorded before the I.O. and would obtain bail on the ground of further inquiry. It can legitimately and validly be pressed into service, when prosecution evidence is inherently inconsistent, defective or insufficient, requiring further inquiry into the guilt of accused, but cannot be so lightly availed, by manufacturing a ground for the same. When there is sufficient evidence in favour of the prosecution version and some evidence in favour of defence, the safest course open for dispensation of justice is, that the matter be left for the trial court to evaluate the evidence of prosecution as well defence and then form its opinion, about guilt or innocence of the accused. No observation can be made at bail stage, about the evidence of either side, as it would definitely affect their case, at trial.

10. It appears from the record that challan has already been put in Court and the P.Ws. were summoned, but after arrest of accused/petitioner, the case was fixed for framing, of charge against him for 8-2-2014, but in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. Much has been argued before me from either side, but discussion on all these points would amount to deeper appreciation of evidence which has always been deprecated by the Hon'ble Superior Courts at bail stage, particularly, at a stage when trial has commenced or is likely to commence in the near future, because any expression on merits at such stage, would cause prejudice to either party, at trial stage and this principle has been firmly and clearly laid down by the apex Court in Muhammad Ismail's case (PLD 1989 (sic) 585).

11. On the face of it, reasonable grounds exist for believing that the accused/petitioner has committed an offence which comes within the prohibitory clause of section 497(1), Cr.P.C., resultantly, the petition for the grant of bail stands dismissed. However, learned trial Court is directed to conclude the trial within a period of two months, positively if not earlier than that. HBT/309/P Bail refused.