2004 PLP 1153 (YLR)

Khawaja Muhammad Khan for Petitioner. Malik Akhtar Zaman for the State. Javed A. Khan for Complainant. Date of hearing: 21st November, 2003. On 21-7-2003 at about 1410 hours complainant Alamzeb was brought to D. H. Q. Hospital Mardan in injured condition wherein he made a report to the effect that on the day of occurrence i.e. 21-7-2003 he alongwith his brother Miraj Gul and nephews Siraj Gul and Jehanzeb was busy in his Saw mill when in the meanwhile Abdul Qayum, Abdul Qadir (petitioner) and Abdul Alam sons of Azam entered into the Saw machine, duly armed with Kaiashnikovs and made a demand for money from Miraj Gul. On refusal they resorted to firing resulting into the injuries caused to the complainant and his brother Miraj .Gul. Siraj Gul and Jehanzeb were stated to have witnessed the occurrence. The complainant succumbed to his injuries and expired in the hospital on .23-7-2003.

2. The section of law was accordingly altered from section 324/34, P.P.C: to section 302/34, P.P.C. The petitioner was arrested on the following day of the occurrence and a pistol .was recovered from his possession: The petitioner submitted an application before Judicial Magistrate Mardan for grant of bail which was rejected vide order dated 3-9-2003. The prayer of, the petitioner was also declined by learned Additional Sessions Judge Mardan through his order dated 30-9-2003. The petitioner has moved this Court with the similar prayer and in support of the bail application it is submitted by learned counsel for the petitioner that there is no evidence ocular or circumstantial connecting the petitioner with the perpetration of the crime and that the claim of P.Ws. Siraj and Jehanzeb having seen the occurrence `stands belied by the medical evidence and the site plan. He also submitted that the petitioner had no motive whatsoever to .commit the crime and the victim died due to negligence and mismanagement in treatment. He relied on PLD 1995 SC 34.

3. Malik Muhammad Akhtar, Advocate appearing on behalf of the State strongly opposed the bail application and reiterated that prosecution is in possession of sufficient material to connect the petitioner with the guilt and the concession of bail has been refused to the petitioner on proper exercise of discretion and the impugned order hardly warrants interference of this Court. Mr. Javed A. Khan; learned counsel for Alamzeb respondent also adopted the arguments of learned State counsel and opposed the bail application. He placed reliance on Muhammad Mushtaq petitioner v. The State respondent 1997 PCr.LJ 1140 Lahore; Siraj and another petitioners v. The State and another respondents 2000 PCr.LJ 1220 Peshawar and Abdul Hayee and two others petitioners v. The State respondent 1996 SCMR 555.

4. An accused would only be entitles to the discretionary relief of bail when on the tentative assessment of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprison ment for life or imprisonment for ten years and in absence of any such finding to this effect the Court is debarred to hold that the case is of further inquiry entitling the accused to bail within the meanings of section 497(2), Cr.P.C. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively.

5. The crime in question having taken place on 21--7-2003 at 1345 hours in the Saw machine of complainant Alamzeb near Baghdada Pull, Mardan, the matter was reported to the police the same day at 1410 hours in the Casualty Ward of DHQ Hospital, Mardan. In the promptly lodged report the petitioner and his brothers Abdul Qayum and Abdul Alam are directly nominated for firing with their Kalashnikovs resulting into the injuries caused to the complainant and his brother Miraj Gul; Siraj Gul and Jehanzeb nephews of the complainant have fully substantiated the prosecution story. The medical evidence, site plan recovery of eight empties of Kalashnikov from the spot also support the charge. The objection of the learned counsel for the petitioner regarding alleged contradiction in medical evidence and the ocular account cannot be looked into at the stage of bail. After recording evidence, it is for the trial Court to give weight to the prosecution evidence in its own wisdom. At bail stage, evidence of the parties cannot be assessed/tested in depth. Only tentative assessment has to be made. The petitioner and. his brothers are charged in the F.I.R. for collectively attacking the complainant party culminating into the injuries to one person and ultimate death of the other. They are all liable for the commission of the crime. As such there are reasonable grounds to believe that the accused-petitioners are guilty of non bailable offence which fall within the prohibitory clause of section 497, Cr.P.C. Hence they are not entitled to the concession of bail. The bail application fails which is hereby dismissed.

6. Needless to add here that the observations made above are tentative in nature and relate to the order in hand only. H.B.T./19/P Bail application dismissed.