2002 P Cr (PLP)

Muzzamil Khan for the Complainant. Muhammad Waris Khan, A.A.‑G. for the State. Date of hearing: 3rd January, 2002. The petitioner stands arrested in case F.I.R. No.531 registered at Police Station Cantt. Kohat on 13‑10‑2001 under section 302/34, P.P.C. at the instance of ‑complainant Farooq Ahmad, brother of Khalid Ahmad (deceased).

2. The complainant was present in his shop on 13‑10‑2001 when he was informed that his brother Khalid Ahmad has been injured by someone and removed to the hospital. The complainant rushed to the hospital and found his brother lying injured in an unconscious condition. In view of the precarious condition, the injured was removed to Peshawar for treatment but he succumbed to his injuries and expired near Village Mattani, Peshawar. The complainant in his supplementary statement recorded on 15‑10‑2001 under section 164, Cr.P.C. charged the petitioner for the murder of his brother stating that while enroute to the hospital he was informed by the victim that he has been fired by the petitioner, Muhammad Hanif and Ghulam Qadir accompanying the victim to the hospital, also supported the version of the complainant. Resultantly, the petitioner was arrested and a c4se was registered against him vide F.I.R. 531, dated 13‑10‑2001 Police Station Cantt. Kohat.

3. The petitioner submitted applications before Judicial Magistrate and District and Sessions Judge, Kohat for his release on bail which were turned down through orders, dated 29‑10‑2001 and 13‑11‑2001 respectively which has given rise to the filing of instant bail application.

4. I have heard Mr. Nek Nawaz Khan, Advocate for the petitioner, Mr. Muhammad Waris Khan, Additional Advocate‑General for the State and Mr. Muzammil Khan, Advocate for the complainant.

5. Learned counsel for the petitioner contended, inter alia, that the petitioner has been falsely associated with the guilt; that there is no evidence to connect the petitioner with the murder of Khalid Ahmad (deceased) and that supplementary statement of the complainant recorded on 15‑10‑2001 is inadmissible in evidence and should not have weighed with the Courts below. To substantiate the pleas, he placed reliance on a number of cases reported as Ghulam Murtaza v. The State 2000 YLR 2020, Allah Ditta v. The State 2000 YLR 763, Muhammad Aslam v. The State 2000 MLD 911, Muhammad Tariq v. The State 2000 PCr.LJ 1840, Muhammad Hanif v, The State 1997 PCr.LJ 70, Muhammad Shah and another v. The State 1993 SCMR 550, Falak Sher v. The State 1995 SCMR 1350, Muhammad Rafique v. The State 1997 SCMR 412, Ghulam Hussain v. The State 1998 PCr.LJ 40, Azeem and others v. The State 1997 PCr.LJ 688, Jalal v. The State 1999 YL R 1493, Aslam Khan v. Qaisar Khan and 2 others 1999 PCr.LJ 582, Muhammad Akram v. The State 1989 PCr.LJ 1059 and Babar Hussain v. Muhammad Rashid Khan and another 2000 PCr.LJ 980.

6. Learned State Counsel assisted by learned private counsel for the complainant, on the contrary, defended the impugned orders and submitted that the exercise of discretion by the Courts below being according to admitted principles of law governing the bail matters, does not warrant any interference.

7. It is the basic principle of law that bail is not to be refused as punishment merely on the allegation that a person has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity in the crime.

8. In the present case, I find that admittedly no one is nominated in the F.I.R. for the murder of Khalid Ahmad (deceased) but the fact cannot be lost sight of that complainant in his supplementary statement recorded on 15‑10‑2001 has implicated the petitioner and his statement is corroborated by the statements of Muhammad Hanif and Muhammad Fida who claim to have accompanied the complainant and the injured to Peshawar for treatment. So far as the affidavits furnished by Muhammad Hanif and Muhammad Fida are concerned, the same cannot be taken into consideration at this stage. Filing of affidavits at the stage of hearing a bail application with the intention of creating doubt in the prosecution case to enable accused to get the relief of bail has been deprecated by august Supreme Court in Naseer Ahmad v. The State PLD 1997 SC 247.

9. Learned counsel for the petitioner has also raised certain points which go deep to the root of the case. It is not denied that for the grant of bail, Court has to make tentative assessment of the evidence and any elaborate sifting of evidence is not warranted by law.

10. Learned counsel for the petitioner has cited various authorities to argument his submissions but the same are distinguishable and do not support the petitioner in any manner. These rulings have no application to the facts of the present case and need no analytical survey. Even otherwise, law in a particular case especially in bail matters, has small applicability to the facts of other cases. Therefore, if bail is granted in one criminal case it is not necessary that the same should be granted in the other case.

11. As the petitioner is charged for an offence which carries punishment falling under the prohibitory clause of section 497, Cr.P.C. and prosecution is in possession of sufficient evidence to connect the petitioner with the guilt, all these circumstances are sufficient to provide grounds for believing that the petitioner is prima facie linked with the offence in question and not entitled for the benefit of bail. It may not be out of place to mention here that challan has already been submitted in, Court and trial is likely to commence in near future. The application fails and bail is refused.

12. The observations made above are tentative in nature and relate to the order in hand only. N.H.Q./456/P Bail refused.