2015 PLP 2461 (YLR)

MRS. IRSHAD QAISER, J.

The learned Judicial Magistrate-III, Abbottabad vide order dated 29-5-2014 and learned Additional Sessions Judge-VII, Abbottabad vide order dated 30-6-2014 had refused bail to petitioner in case FIR No.82 dated 3-4-2013 under Sections 302/324/427, P.P.C. read with Section 15 AA/KPK Police Station Sherwan and now through the present application he seeks bail from this Court on the ground of further inquiry, alibai and material contradiction in the site plan, P.M. report and ocular account. It is contended that petitioner has been falsely and maliciously implicated in the case for covert motive. The complainant party has political rivalry with the petitioner. The petitioner was planning to contest the forthcoming election having every possibility of success. The complainant party could not accept the position of accused/petitioner, therefore, a false case and concocted FIR was lodged against him. The petitioner is absolutely innocent. He was not present in his house on the day of occurrence as he had gone to Karachi on 1-4-2013. That site plan prepared on the pointation of complainant and alleged eye witness also contradicted the ocular account. No empty was recovered from the place where the accused was shown present and charged for firing. Instead recoveries of 26 empties of Kalashnikov are shown at a spot where complainant and his son were present which connect them with the crime. The post Mortem report also negates the version of complainant party. In support of his version he relied on cases titled Qamar alias Mitho v. The State and others (PLD 2012 SC 222), Khan Zada v. The State and another (2012 PCr.LJ 1883), Kalsoom Bibi and another v. The State and another (2012 PCr.LJ 1887 Lahore), Muhammad Iran and others v. The State and others (2012 PCr.LJ 625 Lahore), Sher Ali Khan and 6 others v. Haji Atta Ullah and 2 .others (2012 PCr.LJ 630 PeshaWar), Ehsan Ullah v.' The State (2012 SCMR 1137), Special Land Acquisition Officer and another v. M.K. Rafiq Saheb (2012 SCMR 1140), Ghulam Murtaza Qureshi v. The State (1990 PCr.LJ 323), Mst Baboo Jana v. The State (1990 PCr.LJ 326 Karachi), Saeed v. State and another (2008 PCr.LJ 726), Qurban Hussain and another v. The State (PLD 1994 Lahore 385), Ghulam Yaseen and 2 others v. The State (PLD 1994 Lahore 392), Munir v. The State (2002 MLD 1206 Lahore), Sohrab v. The. State (PLD 1994 Karachi 431), Muhammad Ansar v. The State (PLD 1994 Karachi 442), Qari Hazrat Ali and 2 others v. The State and another (PLD 2013 Peshawar 120).

2. These arguments were rebutted by learned counsel for complainant assisted by State counsel. It is contended that single accused is directly charged in the promptly lodged FIR. There is no motive/mala fide on the part of complainant to falsely charge the accused for the murder of his brother. That the ocular account is supported by other circumstantial evidence in the shape of recoveries and P.M report. That soon after the occurrence the accused disappeared and remained absconder for more than one year. That petitioner has not been able to prove the plea of alibi. There is nothing on record to show that on the day of occurrence he was in Karachi and not present in his house. That prosecution is in possession of adequate evidence connecting petitioner with the commission of crime. He relied on cases titled Wajid v. The State (2004 PCr.LJ 1671 Peshawar), Shah Hussain v. Fahad and another (2013 PCr.LJ 675 Peshawar), Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908), Arif v. The State and 2 others (PLD 2006 Peshawar 5), Saleh Muhammad alias Hashim Marri v. The State (2013 PCr. LJ 692 Balochistan), and Muhammad Afzal v. The State (2012 SCMR 707).

3. It is settled law that accused would only be entitled to the discretionary relief of bail when on the tentative assessment of material brought on record before it, the Court reaches to a conclusion that there are no reasonable grounds for believing that accused is guilty of a non bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years and in the absence of 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 meaning of Section 497(2), Cr.P.C.

4. I have heard learned counsel for the parties and perused the available record with their assistance.

5. As per contents of FIR the complainant, being the brother of deceased, along with his son being eye-witnesses of the occurrence implicated the single accused by name for indiscriminate firing at the deceased which resulted his immediate death. The occurrence took place on 3-4-2013 at 1945 hours and it is promptly reported on same day at 2050 hours. There is no delay in lodging the report against the petitioner. At present the question of deliberation and consultation does not arise. The main arguments of the counsel for the petitioner is that the case of the petitioner is one of further inquiry and that there are conflict in medical and ocular account. That site plan also does not support the version of complainant party and that petitioner was not present in his house on the day of occurrence. It is settled law that the conflict between ocular account and medical evidence as well as site plan could not be appreciated without a deeper appreciation of evidence and the same is not warranted at bail stage. Reference in this respect is made to Mumtaz v. State (2012 SCMR 556), Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908), Saleh Muhammad alias Hashim Marri v. The State (2013 PCr.LJ 692). It is also established principle of law that the veracity of plea of alibi would be determined and scrutinized during trial and not at bail stage. Reference is made to Muhammad Afzal v. The State (2012 SCMR 707). So far the contention of petitioner that since the case is one of further inquiry therefore, he is entitled to concession of bail. It is consistent view of apex Court that for such reason accused could not be entitled for grant of bail. Reference is made to PLD 1988 SC

621. Reference, is also made to Mst Parveen Akhtar v. The State and others (2002 SCMR 1886), wherein it is held; "Mere possibility of further inquiry which existed almost in every criminal case was not ground for treating the matter as one under Section 497(2), Cr.P.C. Overwhelming evidence being available on record to connect accused with the commission of offence, he was not entitled for grant of bail on ground of further inquiry."

6. As per record accused petitioner became absconder for long time soon after the occurrence 26 empties were recovered from the spot. After the arrest of accused he led the police to the spot and pointed out the place of occurrence and at his pointation additions were made in the site plan. At present it is also important to note that at his pointation weapon of offence i.e. Kalashnikov was recovered and the recovered Kalashnikov and empties were sent to expert. The report of which is in positive.

7. At present a prima face case exists against the accused/petitioner in view of the facts of the case. The case of the accused/petitioner falls within the prohibitory clause which disentitled him to be released on bail. Hence, the present bail petition being without force is hereby dismissed. Before parting with the order it may be kept in mind that the foregoing observations are tentative in nature for the disposal of present bail petition and having no bearing on the trial of accused. In this regard reliance is placed on 1996 SCMR 1854. HBT/435/P Bail refused.