2005 P Cr (PLP)

Having been charged in a case registered vide F.I.R. No.35, dated 1-10-2004 under sections 302/324/148/149, P.P.C. at Police Station Shah Salim Karak, the accused-petitioner applied for ad interim pre-arrest bail in the Court of learned Sessions Judge, Karak, which was dismissed vide order, dated 13-1-2005. Thereafter, he moved the Court of learned Judicial Magistrate for his release on bail but his application was rejected vile order, dated 25-2-2005. He then moved the court of learned Sessions Judge, Karak for the same purpose, but his application was dismissed vide order, dated 11-3-2005. Now he has moved this Court for his release on bail.

2. Brief facts are that the complainant along with Farzand, Akmal Shah and Shaheen Shah was coming from Karri Dand after seeing Cricket Match to their own village; that meanwhile accused Noor Wali, Isam Khan, Umar Daraz, Anwarullah Mujeebullah, Haroon Badshah and Ihsan Shah duly armed with kalashnikovs appeared and fired at the complainant and others, which caused the death of Akmal Shah and Shaheen Shah, hence the complainant lodged the above mentioned F.I.R.

3. Haji Muhammad Zahir Shah, Advocate the learned counsel representing the petitioner argued that seven persons were charged for indiscriminate firing and no specific role was attributed to the accused-petitioner.

4. It was also argued that no empty was recovered from the spot where the accused-petitioner was shown present in the site plan prepared by the Investigating Officer.

5. It was also argued that the medical evidence shows that the dimensions of the injuries were one and the same and it appears that it was the act of one person, but seven persons have been charged for the commission of offence. Reliance was placed on the following authorities: (1) 2003 PCr.LJ 1738 (2) 2002 PCr.LJ 775.

6. It was further argued that the accused-petitioner was a Government servant and many persons have filed affidavit that he was present at the time of occurrence at his place of duty.

7. On the other hand Malik Akhtar Naveed, D.A.-G. and, Mr. Muhammad Amin Khattak Lachi, Advocate argued that the accused petitioner is directly charged in the promptly lodged F.I.R.

8. It was further argued that 36 empties were recovered from the spot and the post-mortem reports show that two persons were done to death. The post-mortem reports fully support the prosecution case.

9. It was also argued that not only Farzand Ali an eye-witness supported the case of prosecution in his statement recorded under section 161, Cr.P.C. but Akhtar Jamil, whose statement was recorded under section 164, Cr.P.C., also proved the motive. Being daylight occurrence, it was argued, there was no question of mistaken identity of the accused.

10. I have heard the learned counsel for the parties and perused the available record.

11. In this case two persons namely Akmal Shah and Shaheen Shah were done to death in a broad-daylight occurrence, which took place at 12-45 hours. The accused-petitioner has been directly charged in the promptly lodged F.I.R. for effective firing. From the place of occurrence, the Investigating Officer recovered 36 empties of 7.62 bore. Perusal of the post-mortem report of the deceased shows that Akmal Shah deceased received 6 entry, 6 exit and one graze wounds, whereas Shaheen Shah deceased received 5 entry, 5 exit and one graze wounds on their persons. The post-mortem reports fully support the case of prosecution. The occurrence was witnessed by Farzand Ali, who in his statement recorded under section 161, Cr.P.C. supported the case of prosecution. In order to prove the motive, statement of Akhtar Jamil was recorded under section 164, Cr.P.C. on 6-10-2004, who narrated the motive in his said statement.

12. So far as the plea of alibi taken by the petitioner is concerned, perusal of the record shows that such plea was not taken before the learned Judicial Magistrate. However, application for bail submitted before the learned Sessions Judge, Karak shows that the petitioner took up the plea that at the time of occurrence he was not present in village and had gone out of the village due to his personal engagement, but he B did not mention as to where he had gone at that particular time. Since the petitioner himself has not taken any specific plea of alibi, therefore, the same cannot be taken into consideration at this stage. There is a strong prima facie case connecting the accused petitioner with the commission of offence falling within the prohibitory clause of section 497, Cr.P.C. I, therefore, do not feel inclined to release the accused-petitioner on bail. The bail petition in hand is dismissed. H.B.T./407/P Petition dismissed.