2003 P Cr (PLP)

Malik Fakhare Azam for the Complainant. Date of hearing: 16th December, 2002. Rab Nawaz petitioner, one of the accused persons involved in case F.I.R. No.203 dated 17‑8‑2002 registered at Police Station Lachi under sections 302/324/148/149, P.P.C. has approached this Court for grant of bail on refusal of the same by the Courts below vide order dated 1‑10‑2002 and 24‑10‑2002 respectively.

2. The prosecution story in brief is, that on the day of occurrence i.e. 17‑8‑2002 at 17‑30 hours complainant alongwith his nephew Niaz Muhammad deceased was present in Landay Ghar, when in the meanwhile Haq Nawaz Khan, Wahab Khan, Daud, Khial and petitioner Rab Nawaz duly armed with kalashnikovs appeared there and started firing at the complainant party at the instigation of Shahzad Gul, as a result of which Niaz Muhammad was hit and died on the spot. The complainant escaped unhurt. The abduction of Mst. Fatima Bibi, wife of Haq Nawaz (absconding co‑accused) was stated to be a motive behind the occurrence. In addition to complainant, Momin Khan a co‑villager of the complainant was shown to have witnessed the incident.

3. In support of his plea for bail, Mr. Sher Nawaz Khattak, Advocate, learned counsel for the petitioner vehemently contended that prosecution is in possession of no incriminating material .to connect the petitioner with the crime in question and that the whole story of the prosecution is based on mala fide and concoction. He also contended that no empty has been recovered from the spot except two spent bullets, though the petitioner and his companions are alleged to have fired indiscriminately at the complainant party with their kalashnikovs and this circumstance' alone is indicative of the fact that the occurrence had not taken place in the manner as alleged. The learned counsel also invited my attention to the site plan prepared in this case at the pointation of the complainant and attempted to argue that keeping in view the distances indicated therein, it was not possible for the complainant to have seen the accused party firing at the deceased. Concluding the arguments, the learned counsel submitted that the entire family has been roped in on account of abduction of Mst. Fatima Bibi by the deceased but all these circumstances have been ignored by the Courts below and concession of bail has been declined without cogent reasons. In support of his contention, reliance has been placed on cases reported in 1995 SCMR 310, 1996 SCMR 1125 and 2002 MLD 52.

4. Malik Fakhre Azam, Advocate learned counsel for the complainant, opposed the bail application and reiterated that this is a case in which present petitioner also shared common intention with the absconding co‑accused and in view of the attending facts and circumstances of the case, the petitioner is not entitled for grant of bail. He relied on 1988 SCMR 281, 1998 SCMR 354, 1998 SCMR 496 and 1996 SCMR 555.

5. Mr. Abdul Karim, Advocate for the State adopted the arguments of learned counsel for the complainant and contended that having regard to the role assigned to the petitioner he is vicariously liable and concession of bail has been refused to him for valid reasons which warrants no interference of this Court.

6. I have heard at length the contentions of learned counsel for the parties and the case‑law relied upon by them. Firstly, I would like to observe that each criminal case has its own merits. Deeper appreciation of evidence is not permissible at the bail stage. While considering the plea of bail the Court has to evaluate the evidence available on the record tentatively keeping in view the various precedents of the superior Courts.

7. It needs no reiteration that a case would only fall within the scope of further inquiry under section 497(2), Cr.P.P. if the Court reaches a conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non‑bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of finding to this effect, there will 'be no occasion for the Court to hold that the case is one of further inquiry. It may be mentioned here that in order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non bailable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the Court if the case is still at the stage of investigation will make a tentative assessment of the allegations against accused person in the light of the material so far collected by the Investigation Agency to connect him with the offence.

8. In the case of Shahzaman and 2 others v. The State and another reported in PLD 1994 SC 65, it was observed:‑‑ "Section 497(2), Cr.P.C. provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non‑bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently, after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497 Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. and acquitted or convicted for a lesser offence. In the instant case the fact that in F.I.R. it is not pinpointed as to which appellant had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence."

9. In this case, the petitioner is one of the accused persons charged for firing culminating into the murder of Niaz Muhammad deceased. The fact that in the F.I.R. and in the statements of P.Ws. there is joint allegation of firing and no specific injury on the deceased is attributed to the petitioner would not make the case against him, one of further inquiry as held in case of Shahzaman and 2 others v. State and another PLD 1994 SC 65, Tanveer Ahmed v. Muhammad Saqib and 2 others PLD 1994 SC 88 and Syed Qamar Ahmad and others v. Anjum Zafar and others 1994 SCMR 65.

10. In view of what has gone above, it follows that as the petitioner has been mentioned in the F.I.R. as one of the culprits with clear role in commission of the crime and there is sufficient material on file to associate him with the offence, no prima facie case has been made out for grant of bail. The allegations contained in the F.I.R. would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. for admission of the petitioner to bail. The discretion appears to have been exercised in a proper manner which hardly calls for interference of this Court.

11. The application fails which is hereby dismissed and bail is refused. S.M.A.H./669/P Bail refused.