P L D 2004 Peshawar 101 (PLP)

Sultan Sheheryar Khan for Petitioner. Saleemullah Khan Ranazai for Respondents. Date of hearing: 9th March, 2004. Khan Sherin petitioner stands involved in case F.I.R No.210 dated 12‑7‑2003 registered under sections 302/324/353/224/427/148/149, P.P.C at Police Station. Tajori, District Lakki Marwat. The petitioner has moved instant application under section 497, Cr.P.C for his release on bail on refusal of the same by the Courts below vide orders dated 25‑10‑2003 and 15‑11‑2003 respectively.

2. The brief facts of the case are, that pursuant to an information stated to have been received by complainant Mir Ahmad Khan, SHO, police Station, Tajori on 12‑7‑2000 that Proclaimed Offenders Muhammad Khan son of Gul Shekin and his sons Inamullah and Nasir Khan residents of Kotka Shadi Khan, required in case F.I.R No.172 dated 29‑6‑1999 under sections 302/324/34, P.P.C. Police Station, Tajori are present in their house, a police party comprising the complainant and others was constituted. The police party raided the house of the offenders on 12‑7‑2000 at 9.00 a.m. as a result whereof Muhammad Khan was apprehended. A dagger with sheath and opium weighing 100 grams were recovered from his personal possession. He was boarded in a Flying Coach in order to take him to the Police Station. Constable Muhammad Hanif was" driving Flying Coach. When the Coach and the police vehicle reached near `Ban jar Kanara Algada Khud all of sudden Nasir, Inamullah sons of Muhammad Khan, Razaullah son of Nasir Khan armed with Klashnikovs and Khan Sherin (petitioner) armed with rifle emerged and in order to counter the raid, started indiscriminate firing at the police party. Both the vehicles were hit. Fortunately their occupants remained unhurt. Muhammad Hanif managed to bring the coach to FRP post, Khankhel. However, when he was about to start the vehicle to chase the culprits, he was hit on head and ear which culminated in his death at the spot. The accused persons succeeded to run away from the spot.

3. Arguments of Mr. Sultan Shehryar Marwat, Advocate for the petitioner and Mr. Salimullah Khan Ranazai, Advocate for the State have been heard in the light of material on record.

4. The bail has been sought on the ground that petitioner has been falsely roped in with mala fide intention; that no independent and disinterested witness has been cited to support the charge; that the prosecution story runs counter to the site plan and medical evidence; that identification of the culprits is highly doubtful and that the formalities of section 103, Cr.P.C have not been complied with at the time of alleged raid. On the force of these submissions, it is alleged that the case of petitioner needs further inquiry as contemplated under section 497(2), CI.P.C entitling petitioner for the grant of bail. Reliance has been placed on Amir v. The State (PLD 1972 SC 277).

5. Learned counsel appearing on behalf of the State, bitterly opposed the bail and contended that prosecution is in possession of adequate evidence to connect the petitioner with the commission of crime and the material on record clearly tends to suggest that there are reasonable grounds to believe that the petitioner is guilty of the offences charged with which fall within the prohibitory clause of section 497, Cr.P.C.

6. To consider the bail matter of an accused person involved in a non‑bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bails under subsection (2) of section 497, Cr.P.C.

7. It would be seen that in matters concerning bail, the exercise carried out by the Court is a preliminary one and is restricted to a tentative sifting of the evidence on record opposed to an elaborate sifting of the same. The Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail.

8. Applying the above principle to the case in hand, it would be seen that the alleged incident is one of broad day light murder. Citation of independent witnesses, question regarding mistaken identity, false implication on mere suspicion, alleged conflict between ocular account and medical evidence or that from whose fire shot who was murdered or injured, are issues which should safely be left to the trial Court to appreciate it at the trial itself and not at the bail granting stage. In this regard, reference can be made to Muhammad Sharif v. Shafqat Hussain (1999 SCMR 338) and Abdul Hai v. The State (1996 SCMR 555). In the instant case, the petitioner has not been able to successfully demonstrate the existence of circumstances justifying grant of bail. The application fails which is hereby dismissed. Bail refused. H.B.T./49/P Application dismissed.