2010 PLP 1732 (YLR)

ATTAULLAH KHAN, J.--Inayatullah etc; have filed this application for their release on bail. They are charged under sections 302/34, P.P.C. vide F.I.R. No.171 dated 13-9-2008 of Police Station, Kulachi, District D.I. Khan.

2. The brief facts are that the complainant along with relative namely Zakerya were proceeding towards their house. Zakeria was ahead followed by Inayatullah, Attaullah, Aurangzeb and Sadullah, accused/petitioners who were duly armed with Kalashnikovs, while the complainant was following them at some distance. In the meanwhile, all the accused opened fire at them with which Zakeria was hit who fell down and thereafter all the accused decamped from the spot. With the firing of the accused, one Abdur Rehman was also hit who died on the spot. The complainant has identified the accused in the light of bulb. According to his report, Zakeria on reaching the hospital succumbed to the injuries.

3. Learned counsel for the petitioners argued that the presence of the complainant who is the only eye-witness of the occurrence is disputed because the time of arrival of Zakeria in the hospital and the time between death and the post-mortem examination is 8 to 12 hours. He further argued that the entry wounds of Zakeria and Abdur Rahman were about 1cm x 1cm in size which cannot be caused with Kalashnikovs., He further argued that the bulb was on in the Verandah of the shop which is at a sufficient distance from the complainant and the bulb being inside, the identification was not possible. He further argued that empties have not been recovered from the spot nor there is any bullet sign on any place on the spot.

4. On the other hand, learned counsel for the complainant contended that the F.I.R. is promptly lodged. He argued that the bulb was recovered from an open place with which identification was quite possible. His submission was that the trial has commenced.

5. To sum up, the learned counsel for the petitioner has agitated the following points:-- "(a) Identification not possible in the light of bulb which is at a remote place and also inside the building; (b) The contents of medical report regarding size of wounds and time elapsed between death and post-mortem examination have made the presence of complainant doubtful; (c) Empties not recovered from the spot which makes the use of Kalashnikov doubtful".

6. In my opinion, the above points are concerning the trial and if these are considered, it would amount to deep appreciation of evidence which is not viewed with appreciation.

7. The question of presence of eye-witness is to be thrashed out during trial. Apparently, the complainant was present on the spot. Similar is the question of identification of the accused by the complainant which is again the question of trial and if commenced upon would amount to deep appreciation of evidence which is not permissible under the law at this bail stage.

8. The distance between the place of occurrence and place of report is about 18/19 kilometers. The report is lodged within one hour of the occurrence. Keeping in view this long distance and the time consumed in transportation of injured and dead body of the deceased to the hospital, the report is promptly lodged which has eliminated the chances of false implication of the petitioners. Moreover, as per report, the complainant has no relation either with the deceased or any enmity with the accused, therefore, unless evidence is recorded, it cannot be said that he has any motive to involve the accused falsely. The size of wound and the time consumed between death and post-mortem examination is to be taken up during trial if the evidence of the concerned witnesses are recorded. The accused/petitioners have also remained fugitive from law for a sufficient long and unexplained period and the trial has also commenced.

9. The tentative assessment of the materials so far brought on record, prima facie, reasonably connect the accused/ petitioners with the commission of the office and, therefore, they are not entitled to the concession of bail.

10. Consequently finding no substance, the application is dismissed. H.B.T./116/P Bail refused.