2013 P Cr (PLP)

ASSADULLAH KHAN CHAMKANI, J.

Petitioner Gul Khan is seeking his release on bail in case F.I.R. No.295 dated 4-6-2012 registered for offence under sections 302/324/34, P.P.C. at Police Station Mandan District Bannu.

2. The complainant Asghar Khan while reporting the matter to the police in Civil Hospital, Bannu alleged that on the eventful day at the relevant time he along with his brother Gul Muhammad Khan left for attendance before the court of Additional Sessions Judge-I, Bannu from his village. His brother was ahead of him while he was coming behind him at a distance of some paces and when reached the crime spot, three accused Umar Qiyaz Khan; Daraz Khan, Akbar Ali Khan sons of Piao Khan while Gul Khan son of Dawar Khan all duly armed were already present in a double cabin Datsun and when they reached near them, the accused Daraz Khan, Akbar Ali Khan and Gul Khan, the present petitioner, started firing at them with the intention to kill as a result his brother Gul Muhammad Khan was hit, who on the way to the hospital succumbed to the injuries while he escaped unhurt. Motive for the crime was stated previous blood feud, hence the case was registered against the accused.

3. Learned counsel for petitioner contended that the petitioner has been falsely implicated in the instant case because of blood feud enmity between the parties. He further submitted that the charge has been exaggerated and the complainant has thrown the net so wide to involve innocent persons in the case. He was of the view that no recovery whatsoever has been effected from the present petitioner. He maintained that plea of alibi of co-accused Akbar Ali Khan was considered and he was allowed bail while such plea of present petitioner was not taken into consideration. Further submitted that though the petitioner along with co-accused Akbar Ali Khan have been placed in Column No.2 of the challan as such they could not be treated as an accused unless and until summoned by the trial Court. In support of his arguments, the learned counsel relied on 2007 YLR 2209, 2008 SCMR 122 and 2011 SCMR 945.

4. On the other hand, learned counsel for complainant assisted by learned State counsel while opposing this petition contended that the petitioner has been directly charged in the promptly lodged F.I.R. and being a daylight occurrence, the question of mistaken identity did not arise. They submitted that the plea of alibi cannot be considered at bail stage. Arguments heard. Record perused.

5. It is clear from the contents of F.I.R. that co-accused Umar Qiyaz Khan was armed with kalakov while accused Daraz Khan was armed with .30 bore pistol, accused Akbar Ali Khan was armed with Repeater while the present petitioner was armed with .30 bore pistol but the site plan suggests that the place attributed to petitioner Gul Khan, no empty of .30 bore pistol was recovered though there was allegation of indiscriminate firing with automatic weapon i.e. Kalakov, Repeater and .30, bore pistol upon the deceased and complainant and the latter was shown at point No.2. The complainant and the deceased both were at a very short distance but the former did -not receive any bullet or pellet injury. The medical evidence further reveals that there is only one fire arm entry wound having the dimension of 2 x 3 cm and multiple pellets entry wound and there is another large lacerated wound having 6 x 4 cm, so the post mortem report and the recovery memos suggests that only Kalakov and shot gun has been used in the commission of crime. Co-accused Akbar Ali Khan and present petitioner Gul Khan have preferred bail before arrest applications before the learned Sessions Court taking therein their plea of alibi. The I.O. recorded the statements of Gulzar Ali Khan son of Akhtar Ali, Naseeb Khan son of Muhammad Ayaz Khan, Khair-uz-Zaman son of Qamar Zaman, Amanullah son of Attaullah, Naeem Khan son of Hakeem Zada, Zafar Niaz son of Sher Ahmad Khan, Muhammad Nawaz Khan son of Zardad Khan and confirmed the plea that the petitioner was not present on the spot at the relevant time. After collecting the said material and recording the statements of the above named persons, the I.O. found the accused innocent and placed him in Column No.2 of the challan, which is available on the original file. This is very strange on the part of learned trial court that he had considered the plea of alibi of co-accused Akbar Ali Khan while the plea of Gul Khan petitioner was not considered though both of them were placed in Column No.2 of the challan. It is settled principle and rule that once an accused has been declared innocent during the course of investigation and is placed in Column No.2, then he is no more an accused person nor he can be treated so unless and until after submission of challan the trial Court take cognizance and summon him for trial. Bail having to be allowed or rejected on the basis of evidence produced by the parties, Court bound to make tentative assessment of its evidentiary value section 497, Cr.P.C. does not in terms contain any restrictions on Court's power to assess evidentiary value of material placed before it. Courts, however, have to refrain, directly or indirectly, from giving any conclusive finding on question of guilt or innocence of accused. Plea of alibi like other defence plea taken at bail stage is essentialy required to be examined by the court with a degree of care and caution and there is no prohibition in law to grant bail on such plea. However, the assessment of the material in support of the plea must be tentative in nature as deeper appraisal would prejudice the case of one party or the other before the trial Court. In the instant case the plea taken by the petitioner does not appear to be an afterthought and the same was taken on the first day when he surrendered before the court by getting bail before arrest. In view of the above stated facts and circumstances, case of the petitioner Gul Khan clearly falls under subsection (2) of section 497, Cr.P.C., therefore, is entitled to the grant of bail as of right, hence this petition is allowed and the petitioner is granted bail in the sum of Rs.4,00,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means. The above observations are tentative in nature, which will not prejudice the case at the trial. These are the detailed reasons for the short order of even date. MWA/301/P Bail granted.