2024 PLP 2127 (YLR)

Dr. Khurshid Iqbal, J.

Petitioner (Mubashir Ahmad) seeks his release on bail in case FIR No.880 dated 06.11.2022 under sections 302/427/34, P.P.C. of Police Station Karak, District Karak.

2. Facts of the case as narrated in the FIR are that on 06.11.2022, complainant, lnzimam-u1-Haq, took the dead body of his brother to the KD Hospital, Karak, and lodged a report that on the eventful day, he along with his cousin Abdul Latif, and deceased brother Tariq Umar, were going to Karak from Jail Chowk. The complainant and Abdul Latif were proceeding on one motorcycle following the deceased, who was proceeding on another motorcycle a little ahead. At 11:30 hours, when they reached near Habibi Hotel, a motorcycle driven by the present petitioner / accused with co-accused Zeeshan sitting behind him came from their back side and on reaching near the bike of the deceased, co-accused Zeeshan started firing at him through his pistol with murderous intention, due to which, he was hit, fell on the ground from his motorcycle and died on the spot. The accused after commission of the offence decamped from the spot. Motive for the offence as disclosed is previous blood feud between the parties.

3. Arguments of learned counsel for the parties as well as the worthy Assistant Advocate General representing the State heard and the record perused with their valuable assistance.

4. The main argument of learned counsel for the petitioner is that the petitioner has not been attributed an effective role of firing at the time of the occurrence. Indeed, it is so. The record, however, also reflects that the petitioner was driving the motorcycle on which co-accused Zeeshan was sitting behind him, who opened firing at the complainant party, as a result of which, one Tariq Umar was killed. It finds that it was the petitioner who played the role of a facilitator. In the ease of "Siraj and another v. The State" (2000 PCr.LJ 1220 Peshawar), accused had sought his release on bail, mainly on the ground that the role of effective fire shots was attributed to co-accused. However, the Court while declining the concession so sought, held that at bail stage, it is not material to see as to whose fire hit whom as the common attack launched by the accused with absconding co-accused indicates their common intention, as such, every accused would be liable to the criminal act as if it was done by him alone. Similarly, in the case of "Sher Bahadar v. Haji Ghaffar Ali Khan and another" (1999 PCr.LJ 403 Peshawar), this Court while recalling bail, allowed to an accused person, has held that mere fact that the allegations against the accused are general in nature and no specific injury sustained by victim has been assigned to accused, would not make case against him one of further inquiry. The doctrine of further inquiry / reasonable grounds has been defined and elaborated by the Supreme Court of Pakistan in a number of cases. An earlier case is of "Arbab Ali v. Khamiso and others" 1985 SCMR 195 wherein it was held that: "It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 467 under subsection (2) of section 487, Cr.P.C. when there are sufficient grounds, for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds of further inquiry."

5. The latest case is of "Fahad Hussain v. The State" 2023 SCMR

364. In this case (though bail was granted), it was explained in the following words: "In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merits of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused person(s). Reasonable grounds are those which may appeal to a reasonable judicial mind, as opposed to merely capricious, irrational, concocted and/or illusory grounds."

6. In the case in hand, it is prima facie seen that the petitioner played the role of a facilitator as discussed above. Moreover, learned counsel for the petitioner submitted at the bar that complete challan has been put in the Court and the trial has commenced. In the like circumstances, the Apex Court while declining bail to an accused person has held in the case of "Said Akbar and another v. Gul Akbar and another" (1996 SCMR 931) that: "Secondly we have been informed that case in the Trial Court is ripe for recording of evidence and even date is fixed for that purpose. Since recording of evidence in the Trial Court is about to commence, this Court normally does not interfere with order of the High Court regarding bail."

7. The law laid down in the judgment (supra) was also followed by this Court in the case of "Malay Khan v. The State and another" (2021 MLD 379 Peshawar), wherein it was held that: "

7. It further transpires from the record that trial against the accused / petitioner has commenced and so far three PWs have been examined. In such situation, releasing the accused on bail can hamper the trial as it is now well settled that accused should not be released on bail when its trial is in progress."

8. Thus, while making tentative assessment of evidence on file and deriving wisdom from the law laid down in the judgments referred to above, I hold that keeping in view the factum of previous blood feud between the parties vis-a-vis the role of facilitation so played, the common intention of the petitioner / accused to do away with the life of the deceased, is apparent at this stage. The petitioner / accused being prima facie connected with the commission of the offence is not entitled to the concession of bail. Resultantly, the instant bail petition stands dismissed. This order is based on tentative assessment of the record. It shall have no bearing on the merits of the trial at the trial. JK/219/P ???