1999 PLP 1439 (MLD)

2. The F.I.R. having been registered, the petitioner/accused was arrested pursuant thereto. He applied for bail after arrest on 22-12-1997 but the same was rejected by the learned Additional Sessions Judge, Jhelum on 26-2-1998. Hence this petition for bail after arrest before this Court.

3. Learned counsel for the petitioner raised the following contentions in support of his plea for bail after arrest:-- (i) that the examination of the site plan would show that the place where accused is said to be standing and firing on the deceased is such that the accused could not see the deceased and the distance in-between the two points was also such that the injury attributed to the petitioner could not have been caused; (ii) that the range of the fire attributed to the accused keeping in view the two places where the accused and the complainant/deceased were standing was such that the fire-shot hitting the deceased from the back side could not have emerged from the abdomen but should have emerged from a different angle. Learned counsel submits that the site plan if viewed in this perspective demolishes the version of the prosecution as alleged against the petitioner/accused; (iii) that the allegation against the petitioner is that he used 7mm rifle whereas the recovery from him has been effected of 8 mm. This apart no recovery of empties has been made from the spot; (iv) that the motive attributed to the petitioner is to far-fetched as to have prompted to take the very life of the complainant/deceased; (v) that the P.Ws. are the brothers of the deceased whose interestendness to support the prosecution version is not above board; (vi) that the other co-accused are also alleged to have fired though in effectively. Learned counsel submits that in a situation such as alleged in the F.I.R., it could not be ascertained as to which of accused fired effectively resulting in the death of the complainant. He submits that it may well be that those accused of in effective firing might have been the persons who caused the death of the deceased; (vii) that the assertion in the F.I.R. attributed to the complainant deceased that he was fired at by the petitioner while he was turning from the roof down towards in the courtyard. Learned counsel submits that in the very nature of things, it was not possible for the complainant deceased while turning to have seen as to who had in fact fired at him at the time; (viii) finally learned counsel contends that the petitioner-accused is aged 15 years and 20 days on the basis of the birth certificate placed on the record and that he being a minor is entitled to be admitted to bail for this additional reason as well. He has placed reliance on 1996 SCMR 364 (Fazal Khaliq alias Hafiz v. The State).

4. Malik Muhammad Kabir, learned Assistant Advocate-General, Punjab appearing on behalf of the State has controverted the submissions made by the learned counsel for the petitioner and contended that the accused/petitioner is named in the F.I.R.; that all the prosecution witnesses have supported the prosecution version as contained in the F.I.R.; that the F.I.R. has been promptly lodged ruling out the possibility of premeditation or substitution; that the alleged weapon of offence has been recovered from the petitioner; that the medical evidence has corroborated the prosecution story; that the motive as alleged in the F.I.R. is attributed to none else but the petitioner/accused; that the birth certificate which has been relied upon in support of the contention that the petitioner is a minor and is aged 15 years and 20 days had not been believed by the learned trial Court and that according to the material available on the record of the said Court, the date of birth of the petitioner/accused was 7-4-1976 and he was not a minor; that the case of the other accused is distinguishable from that of the present petitioner/accused in that it is the petitioner/accused who is alleged to have caused death of the complainant/deceased. Such allegation is not available against the other co-accused who have already been enlarged on bail. The petitioner's case in this view of the matter is distinguishable from the other co- accused and he cannot ask for identical treatment; that the place wherefrom the petitioner/accused is alleged to have fired at the complainant/deceased is 42 feet away from the accused/petitioner and it is possible for the petitioner to have fired from that distance, so as to have caused death of the deceased; that the challan has since been submitted in the Court on 8-8-1997; that the F.I.R. was recorded on the statement of the complainant who later on died having succumbed to the injuries received by him. Learned Law Officer submits that the status of the statement made by the complainant is that of dying declaration which is entitled to be believed in the circumstances of the case. Learned Law Officer in support of the submission, thus, placed reliance on 1997 SCMR 4 (Ghulam Zahoora v. Malik Muhammad Siddique) and contended, that ever, the statements of the other P.Ws. are ignored, the conviction can be sustain: even on the solitary statement of the complainant/deceased, his dying declaration. Further reliance was placed by the learned Law Officer PLD 1983 SC 27 (Muhammad Ayub v. State) to submit that in order to give status of the dying declaration, it is not necessary that the statement in question should be made before the Magistrate. Even if the statement is made in the form of the F.I.R., it can be treated as such; that the contention of the learned counsel for the petitioner to the effect that the fire-shot could not have hit the deceased in a manner as alleged in the F.I.R. is such as cannot be appreciated at this stage without recording evidence. Learned Law Officer submits that having realized that the complainant was going to be fired at and hit by the petitioner/accused; he might have tried to change his position and while doing so, the fire might have hit him in the manner as alleged in the F.I.R. No exception he maintains could be taken to the same on the hypothesis as placed before the Court by the learned counsel for the petitioner; that the contention of the learned counsel for the petitioner to the effect that the fire-shot resulting in the death of the complainant/deceased might have originated from another co-accused is a plea which has been raised before this Court for the first time. He maintains that the was never the case of the petitioner/accused before any Investigating Office throughout the investigation. It is too late in the day for the accused to change these horses mid stream and to take a different position altogether; that the petitioner/accused is alleged to have fired at the complainant/deceased twice. He first shot was ineffective but that the second one did hit the complainant deceased resulting in his death. Learned Law Officer maintains that the fact that petitioner/accused fired at the complainant/deceased for the second would manifestly show his intention to kill the complainant/deceased; that the deeper appreciation of the prosecution case as per the dictums of the superior Courts cannot be made. For, such an exercise is likely to prejudice the case of one party or the other at the trial; finally learned Law Officer submits that the evidence available on the record prima facie does connect the petitioner/accused with the allegation as contained in the F.I.R. and he is comprehensively connected with the allegation of causing death of the deceased/complainant. This being so, he is not entitled to the concession of bail.

5. Exercising his right of reply, learned counsel for the petitioner submits that the contention raised by the learned Law Officer as to the treatment of the statement of the complainant/deceased as a dying declaration is not correct. For, in his view, the complainant/deceased was not in the immediate fear of death when he lodged the F.I.R. which is a necessary phenomenon for treating the statement as a dying declaration.

6. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record. There is no denying the fact that the fire-shot which hit the deceased and as a result whereof he died was fired by the petitioner/accused. Mindful of the said fact, the learned counsel for the petitioner tried to show that the distance from which the shot was fired and the dimension in which it is alleged to have hit the complainant was such that it was highly improbable to believe the prosecution story as contained in the F.I.R. I am afraid, the contention of the learned counsel for the petitioner as to this assertion of his cannot be appreciated at this stage. For, this would amount to deeper appreciation of evidence on the record which is not possible at this stage. The prosecution witnesses in their statements under section 161, Cr.P.C. have supported the prosecution story as contained in the F.I.R. The petitioner is the principal accused of the case who alone is accused of effective firing on the deceased resulting in the latter's death. The case of the petitioner cannot be equated with that of the other co-accused who have been enlarged on bail. For, the said accused have not been alleged to have fired at effectively on the complainant/deceased, causing his death. The challan of the case has been submitted in the trial Court and the trial of the accused is on the anvil. The case against the petitioner falls within the prohibitory clause of section 497, Cr.P.C. As to the contention of the learned counsel for the petitioner that the petitioner was minor as per the birth certificate placed on the record, the said question was duly gone into by the learned trial Court and on the basis of material placed on the record of the said Court, it was found that the date of birth of the petitioner was 7-4-1976. So, it could not be said that the petitioner was a minor and entitled as such to the concession of bail. I see no justification in accepting the instant bail application. The. same is accordingly dismissed. N.H.Q./M-799/L Bail refused.