2012 PLP 1742 (YLR)

KHALID MEHMOOD, J.

Petitioners, namely, Hakim Khan and Ajmal Khan alias Ajamli, having failed to secure their release on bail in the lower Courts, have approached this Court for seeking the same relief.

2. Short facts of the instant case are that the accused/petitioners were charged in case F.I.R. No.129 dated 11-6-2011 registered under section 302/34, P.P.C. police station, Shaheed Nawab Khan Penyala DI Khan. In the F.I.R. the accused/petitioners along with two other co-accused were charged by the complainant for murder of her husband.

3. Learned counsel for the accused/petitioners contended that the report was lodged after delay of 3:45 hours in the shape of murasila. He further submitted that the report had lodged at the spot and that too delay of 3:45 hours which clearly suggests that the same was lodged after due consultation and deliberation and the same is based on mala fide on the part of prosecution. He further argued that the present of complainant on the spot as per custom of the area is highly impossible and the cutting of the bushes has not been pointed out by the Investigating Officer nor any bundle of such bushes had taken into possession by the Investigating Officer. He urged that three entry wounds on the body of deceased can be sustained by a single accused armed with Kalashnikov. He further contended that ten empties recovered from the spot were not sent to the FSL for ascertaining whether the same were fired from single firearm or different. He referred to postmortem report according to which the occurrence could had been committed at 5-00 or 6-00 hours. He further submitted that the lower Courts have not appreciated the evidence collected by the prosecution whereas the evidence produced by the prosecution is highly doubtful, improbable and is not sustained. He relied on 1967 PLD Peshawar 269, 1982 PCr.LJ 295 and 338 (Peshawar) and 2009 PCr.LJ

206. It was held in these cases that the F.I.R. was lodged on the spot presumed to be recorded after due consultation and highly doubtful. He argued that the entire evidence which has been collected by the prosecution should be looked into as it has been held by judgment reported in PLD 2009 Pesh 28 and 2003 PCr.LJ

149. He urged that no specific role has been attributed to the accused. He relied upon 2009 PCr.LJ 110 and requested that it is a case of further inquiry and accused/petitioners are entitled to the concession of bail.

4. On the other hand, learned State counsel assisted by learned counsel for complainant argued that the accused/ petitioners are directly charged in the F.I.R. He submitted that at bail stage tentative assessment of record should be taken and in the present case the accused/petitioners have been charged by the wife of the deceased which is a natural witness. He contended that the report was promptly lodged and being daylight occurrence the accused/petitioners were identified by complainant. He further submitted that the accused petitioner, namely, Hakeem Khan had already murdered his own brother namely Warashmin Khan prior to the present occurrence. Moreover, ten empties were recovered from the spot. The empties were shown in the site plan with the respective position of the accused. He urged that as per postmortem report four entry wounds have been mentioned by the doctor, therefore, they are not entitled to concession of bail. He relied upon 1998 SCMR 596 and 2010 PCr.LJ 386.

5. Arguments heard and record perused.

6. At bail stage we have to see the F.I.R., site plan, postmortem report and other evidence collected by the investigating officer and at this stage Court cannot go into deep merits of the case which is the job of learned trial Court. Though the point raised by the learned counsel for accused/petitioners are reasonable but the same can only be taken at the trial of the accused because in the present case the accused/petitioners are directly charged in the murder of deceased by natural witness who is widow of the deceased having three minor sons maximum age of elder son is five years. It is also pertinent to note that accused/petitioner, namely, Hakeem Khan was charged for the murder of his own real brother prior to the present occurrence. No doubt the report has been lodged at the spot but the reason has been given by the complainant regarding the delay because she is womanfolk remained present on the spot. This point can be resisted only at the stage of trial and not at this stage. All these points in presence of the previous enmity over the land dispute does not warrant the concession of bail to be accepted.

7. In view of my above findings, the instant bail petition is dismissed. H.B.T./304/P Bail refused.