2010 P Cr (PLP)

ATTAULLAH KHAN, J.

Nawab Khan petitioner has filed this petition for his release on bail in case F.I.R. No.27 dated 31-1-2010 under sections 302/324/148/149, P.P.C. read with sections 3/4 of the Explosive Substances Act, registered at Police Station Tajori, District Lakki.

2. According to the report of Ahmad Gul lodged on 30-1-2010 at 0815 hours, on the eventful day he along with his sons named Izzat Khan and Amir Khan had gone to the tubewell of Khan Muhammad for starting when at 0730 hours Nawab Khan Akbar Zaman, Mutabar Khan, Sawab Khan and Rustam Khan armed with fire arms were already sitting there in the Morchas and on seeing them, the accused party opened firing and also threw a hand grenade at them with which Izzat Khan and Amir Khan got injured while he (the complainant) luckily escaped unhurt. Amir Khan subsequently succumbed to the injures. Motive for the offence was given to be previous blood feud enmity and the occurrence was alleged to had been witnessed by so many co- villagers besides the complainant.

3. Learned counsel for the petitioner argued that:-- a)?? One of the P.Ws. namely, Bakht Jehan shown to be an eye witness has not been mentioned in the F.I.R. as an eye witness, b)?? No specific role has been given to the petitioner, c)?? The complainant inspite of indiscriminate firing escaped unhurt which suggests his absence from the spot, d)?? The medical evidence strongly contradicts the contents of F.I.R. and e)?? That the accused/petitioner during the relevant time was not available on the spot."

3. On the other hand, learned counsel for the complainant and State submitted that the F.I.R. is promptly lodged wherein the accused/petitioner is directly charged, the case is at trial stage and any comments in the bail order may prejudice the mind of the trial Court.

4. I have perused the record carefully and anxiously considered the arguments advanced at the bar.

5. As far as the submissions of the learned counsel for the petitioner are concerned, it relates to the trial and deeply touch the merits of the case which cannot be taken into consideration at this bail stage, because it would amount to deep appreciation of evidence which is not permissible under the law at present. For example, the plea of alibi if commented upon at this stage would definitely affect the mind of the trial Court which is unwarranted because unless and until evidence is recorded, no decision can be taken about the absence or presence of the accused on the spot at the time of occurrence. Similar is the case with regard to the alleged contradiction in the medical and other evidence. The record discloses that the learned trial Court has taken cognizance of the case, copies of necessary documents as required under section 265-C, Cr.P.C. have been delivered to the accused/petitioner and the charge would be framed against the petitioner. Any observation about the involvement of the petitioner would definitely prejudice case on either side.

6. Even otherwise, as per the available record, it is not case of further inquiry. The F.I.R. was registered within forty-five minutes of the occurrence and there is no delay in making the first report which prima facie, ruled out the false implication of the petitioner. Besides, the accused/petitioner is directly charged for effective firing which resulted in the murder of the deceased. The occurrence is also witnessed by eye witnesses. A hand grenade is also allegedly used in the offence which reflects the gravity of offence.

7. Keeping in view the above facts and circumstances of the case, I am not inclined to admit the petitioner to bail and his prayer for bail is accordingly declined. H.B.T./198/P?????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.