1989 P Cr (PLP)

Nazir Ahmad Shami and Syed Nawazish Ali Asadi for Petitioner. Qamar‑ud‑Din Mayo for the State. This is a petition for bail on behalf of Muhammad Akmal Khan who alongwith 5 others is being prosecuted for the alleged murder of Muhammad Akram. The prosecution case is that in the Local Council Election, Nazir Ahmad complainant and his relatives supported Nazar Hussain R3jput against Muhammad Akmal Khan petitioner which strained their relationship. On 14‑5‑1968 at about evening time Muhammad Akram a son of Nazir Ahmad complainant alongwith his cousin Abdul Khaliq went to Adda. Muhammad Riaz accused and Abid Hussain also came there Muhammad Riaz gave push to Muhammad Akram with his shoulder. Muhammad Akram gave an injury to Muhammad Riaz after picking a bottle from the nearby shop. On coming to know of this incident Nazir Ahmad sent Muhammad Akram to bring Khadim Hussain to think over the incident. After consultation with Khadim Hussain it was decided that the matter be reported to police. Accordingly Muhammad Akram, Khadim Hussain and Muhammad Ilyas proceeded on motor‑cycle towards police station, Nazir Ahmad complainant and Abdul Khaliq P.W. were still present by the road side in front of their house. In the meanwhile a Suzuki van driven by Muhammad Aslam accused son of Ghulam Ali came there. Muhammad Akmal and Muhammad Aslam son of Aman Ullah accused were sitting in the front seat armed with gun. Muhammad Aslam Driver also had gun. Muhammad Yousaf, Muhammad Riaz and Muhammad Khan accused armed with sticks were sitting in the back seat. Sensing danger Nazir Ahmad complainant and Abdul Khaliq also followed the Suzuki van. At about 11 p.m. they reached a path near village Noorpur and saw Muhammad Akram, Khadim Hussain and Muhammad Ilyas proceeding on the motor‑cycle. The said Suzuki van stopped them. The accused came out of the van shouting Lalkaras. They were identified in the lights of Suzuki van. Muhammad Akmal fired hitting the left arm pit of Muhammad Akram. Muhammad Aslam Ghumman accused fired the second shot which did not hit Muhammad Akram because he had already fallen on the ground. The accused then left the spot leaving their Suzuki van there. Muhammad Akram was taken to hospital in the same van where he died as a result of the injuries, Muhammad Aslam son of Ghulam Nabi, Muhammad Aslam son of Aman Ullah. Muhammad Riaz and Muhammad Khan accused arc on bail. An application for bail on behalf of Muhammad Yousaf is pending in Sessions Court. This is a petition for bail on behalf of Muhammad Akmal Khan accused. It is contended on behalf of the petitioner; firstly, that the story put forth by prosecution was found false by the D.S.P. who came to the conclusion that the Suzuki van did not stop the motor‑cycle driven by Muhammad Akram deceased that Muhammad Akram deceased had stopped the Suzuki van; that Muhammad Akram fired at the occupants of Suzuki van in which Muhammad Akmal Khan and his co‑accused were proceeding to police station to report the matter regarding injuries to Muhammad Riaz accused; that Muhammad Akram deceased had given a butt blow to Akmal accused and that Muhammad Akram was hit by the fire from his own gun which went off when he gave butt blow to Muhammad Akmal accused; that Muhammad Akmal petitioner had no motive to murder Muhammad Akram and that the evidence did not support the ocular account of the case. Lastly that Muhammad Akmal had acted in exercise of his right of self‑defence. I have considered these contentions and have also perused the police file. The finding of police is not that Muhammad Akram was hit by the fire from his own gun. The finding was that he was killed by fire of Muhammad Akmal petitioner. It is correct that the D.S.P. gave his own finding about the stopping of Suzuki van and attacked by Muhammad Akram deceased on its occupants, but in my view this opinion was not formed after recording statements of eye‑witnesses. This opinion is not based on sound material and can, therefore, not be accepted in view of the law laid down in Muhammad Afzal v. Nazir Ahmad 1984 S C M R

429. The contention that the medical evidence did not support the ocular account p of the case or that the accused acted in exercise of the right of self‑defence pertains to deeper appraisal of the evidence which cannot be undertaken at this stage. I am not inclined to agree with the learned counsel that Akmal accused had no motive against Muhammad Akram deceased. It cannot be said that the case of Muhammad Akmal accused is that of further enquiry. He has been specifically ascribed fatal shot at Muhammad Akram deceased. I am, therefore, not inclined to allow bail to him. This petition is accordingly dismissed. Any observation on facts will have no bearing on merits during trial of the case which will be decided by the trial Court according to law after recording evidence. S.A./M‑1048/L Bail refused.