2007 PLP 1451 (YLR)

HAMID FAROOQ DURRANI, J.--This order shall also dispose of Criminal Miscellaneous No.25 of 2007 a bail application filed by Muhammad Salim son of Faqir Muhammad, as both arise out of the same occurrence and F.I.R. No.424 dated 16-9-2006 recorded at Police Station .Safdar, Mansehra.

2. The relevant facts are that the local police, during patrolling of the area found a dead body near Link Road Jia Maira, Moheen Abad. A Taxi Vehicle No.ADB/3853 was also parked nearby with its parking lights on. For the identification purpose the clothing of the corpse were searched which resulted in recovery of a blood-stained purse. The contents of purse including national identity card and driving licence of the deceased disclosed his identity as Safdar Khan son of Khalid Pervez r/o Potha. Some injuries were noticed on the nose, chest and left arm of the deceased. A report against unknown assailants was, therefore, lodged under section 302, P.P.C. During the investigation of the case the petitioners herein were arrested of whom Muhammad Tahir was lastly refused bail by the learned Sessions Judge-II, Mansehra on 18-1-2006 while the bail application of accused Muhammad Salim was rejected by the said Court on 11-12-2006.

3. Arguments of the learned counsel for petitioners, the father of deceased and the State heard. Record of the matter also examined.

4. Mr. Sajjad Afzal Khan Advocate, while arguing the case of petitioner Muhammad Tahir stated that the offence under the F.I.R. in the instant case was an unseen occurrence and no one was charged for the same. The petitioner was not seen last with the deceased nor any other incriminating material was available on record to connect him with the alleged offence. Referring to the confessional statement of co-accused Abid Ali, the learned counsel stated, that the said statement was exculpatory by a co-accused and, therefore, was not to be considered at the bail stage. Besides, the petitioner was not given any role of causing injury to the deceased even if the said statement was resorted to. The learned counsel further contended that the case in hand was of circumstantial evidence, whereas, there were no corroborating factors to support that evidence available on record. It was also stated that no incriminating article was recovered from petitioner Tahir, therefore, his case was of further enquiry and he was entitled to release on bail. The learned counsel relied upon judgment reported as 1997 SCMR 1279, 1999 PCr.LJ 30, 2003 PCr.LJ 142 and 2002 PCr.LJ 1072.

5. The learned counsel appearing on behalf of petitioner Muhammad Salim argued that after the arrest of the accused on 21-10-2006, he was not put to identification by the co-accused Abid Ali. He further stated that in the confessional statement of co-accused only the name Salim was disclosed whereas no other particulars of the petitioner were provided, therefore, the fact that the petitioner was the same Salim as nominated in the confessional statement, was itself under clouds. He was of the view that no case, prima facie, was made out against the petitioner, hence, his bail petition was to be favourably considered. He relied on PLD 1996 Lah. 295 and PLD 1991 Federal Shariat Court 53.

6. Qazi Shams-ud-Din Advocate appearing on behalf of Khalid Pervez, the father of the deceased, contended that all along the record no enmity of the accused with any person including the petitioners could be gathered, therefore, there was no reason for falsely implicating the petitioners in the offence: The circumstantial evidence completely corroborated the involvement of the two petitioners as the recovery of crime weapon was made on the pointation of-accused and also blood-stained clothes were recovered from the custody of Tahir accused. The said articles were sent to Serologist who furnished a positive report thereabout. While referring to the provisions contained in Article 43 of the Qanun-e-Shahandat Order, the learned counsel stated that the confession of the co-accused was to be taken as a piece of circumstantial evidence against the present petitioner which was further complemented by recoveries. The petitioners, in furtherance of their common intention, engaged the co-accused Abid Ali for completion of the offence. In this view, none of the petitioners was entitled to release on bail in the circumstances of the case. The learned counsel relied on 1998 MLD 1307, PLD 1997 SC 547, 2005 PCr.LJ 1881, 1990 SCMR 315, 2003 SCMR 1425 and PLD 1992 Peshawar

123. It was further stated that the challan in the matter was already placed before the learned trial Court while at the stage of framing charge in the case, the record was summoned by this Court in connection with the bail applications in hand.

7. The Learned State counsel mainly relied on the arguments of learned counsel for the father of the deceased and also referred to 2006 SCMR 1292.

8. The record transpires that petitioner Muhammad Tahir was arrested on 23-9-2006 whereas Muhammad Salim was arrested on 21-10-2006 after the recording of statement of co-accused Abid Ali s/o Ali Farman under section 364, Cr.P.C. by the learned Judicial Magistrate, Mansehra. It is disclosed in the said statement that Abid Ali, who was at the relevant time working in Lorry Adda was met by the petitioners who offered him to work with them. The said co-accused was told to bring a taxi to Jia Maira for which was to be paid a sum of Rs.2000. He booked the vehicle of deceased Safdar Khan for Jia Maira while the other accused/ petitioners proceeded to the said place in another vehicle. On reaching Jia Maira, accused Salim started altercation with the deceased and took out a `Chhurri' while accused Tahir tried to grab the said `chhurri' which hit the deceased in his arm. Accused Salim then snatched the `chhurri' from accused Tahir and stabbed the same in the chest of the deceased. There was further grappling between the deceased and the said two accused when accused Salim dragged the ,deceased from the vehicle and again stabbed him. The deceased fell down while the confessing, accused ran away. Subsequently, he was told by Salim and Tahir to throw the crime weapon away and he did so. On the following morning the accused Tahir met the confessing accused Abid Ali and both of them went to bring back the crime weapon which was kept by accused Abid in his house.

9. The contents of above noted statement of the co-accused, made before a competent Court, disclosed that it was not an exculpatory statement while the tenor of the same suggested that it was voluntary. Needless to mention that the said aspect of the matter is to be determined by the learned trial Court at the appropriate stage. It further transpires from the contents of the statement that no ill-will or mala fide was gatherable against the petitioners on the part of the investigating agency or legal heirs of the deceased. The events as disclosed in the said statement were corroborated in terms of recovery of crime weapon and also the blood-stained clothes of the accused petitioners. Apparently, the two petitioners had joined hands to commit the offence alleged against them with the help of confessing accused. The fact that no one was charged initially at the time of reporting of the matter would' itself suggest that, besides the evidence collected and available on record, there was no other consideration for the investigating agency to involve the petitioners. As the offence falls in the prohibitory part of section 497 Cr.P.C., and also that the case has reached the trial Court, this would Rot favourably consider the petitions in hand. In any case, the in-depth scrutiny of the material available on record is to be avoided at the bail stage lest it prejudice the merits of the case at trial.

10. In the light of available facts and circumstances as the connectivity of the petitioners with the commission of alleged offence is prima facie gatherable from the record, both the petitions are to be rejected. H.B.T./61/P Bail refused.