2010 PLP 1464 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

The murder of five persons who were sitting in a Suzuki Carry bearing No. MV-426/Islamabad was reported by IHC Nawaz Hussain Shah and on receipt of information, a case was registered against the unknown persons vide F.I.R. No.99 dated 18-9-2009, Police Station Sakhakot, under sections 302/427, P.P.C. and on the subsequent day, Mst. Roshan Zari widow of Fazal Rehman deceased and mother of Shahzad and Shan deceased through her statement recorded under section 164, Cr.P.C. charged the present accused petitioners along with two others for the commission of offence and the motive for the offence was previous enmity between the parties. The present accused petitioners after refusal of concession of bail by the Courts below have approached this Court for their release on bail.

2. Sahibzada Asadullah, learned counsel appearing on behalf of the petitioners, Mr. Akhtar Naveed, Advocate for complainant and Mr. Akhtar Naveed, A.A.-G. for State were heard and record perused.

3. The learned counsel for the petitioners submitted that the petitioners were not directly charged in the F.I.R. and were subsequently charged by one Mst. Roshan Zari through her statement recorded under section 164, Cr.P.C. and the prosecution while improving its case recorded the statement of one Umar Hayat under section 164, Cr.P.C. on 22-10-2009 and then a supplementary statement of Mst. Roshan Zari was also recorded on 23-10-2009, in which she has made further improvements. The learned counsel was of the view that it was an unseen occurrence and there was no prima facie plausible evidence connecting the accused petitioners with the commission of offence. He submitted that the present accused petitioners were not present in their village at the relevant time and have produced sufficient reliable evidence which proves this fact of their non-presence in the village. He was of the view that it requires further evidence to prove the guilt of the present accused petitioners which makes the case as that of further inquiry and the accused petitioners are entitled to the concession of bail under section 497(2), Cr.P.C. In support of his submission, he placed reliance on case of Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829, Nazar Hussain Shah and another v. The State 2007 PCr.LJ 1274 and Noor Muhammad v. The State 2008 SCMR 1556.

4. As on the other hand, the learned counsel appearing on behalf of the complainant submitted that on the very next day of registration of the case, the widow of Fazal Rehman deceased charged the present accused petitioners along with others for the commission of the offence and the motive for the offence was previous enmity between the parties. The version of the said lady was fully supported by one Umar Hayat whose statement was recorded under section 164, Cr.P.C. He submitted that no doubt, it was a delayed, statement but the reason of delay was fully explained in his statement. Indiscriminate firing was made on the deceased who were sitting in the Suzuki carry and almost 47 empties of Kalashnikov in scattered form were recovered from the spot. He further contended that as the investigation in the case is still in progress, so in the circumstances, the accused petitioners are not entitled to the grant of bail. The learned A.A.-G. appearing on behalf of State endorsed and adopted the arguments of the learned counsel for the complainant.

5. Perusal of the record reflects that the case is still under investigation. The accused petitioners along with others were directly charged by the widow of deceased Fazal Rehman and the mother of Shahzad and Shan deceased in her statement recorded under section 164, Cr.P.C. just on the subsequent day of the commission of offence. Recovery of 47 empties from the spot, blood stained earth and the damaged Suzuki van get support from the statement of Mst. Roshan Zari. The factum of previous enmity at the moment is sufficient motive for the commission of offence. As far as the plea of alibi raised by the petitioners is concerned, that cannot be considered at this stage for the reason, the investigation of this case is in progress and the authenticity of the same can well be ascertained by the trial Court. In the bail matters specifically when the case is in the process of investigation, Court is not required to evaluate the material on the record in presence of the grounds disclosing the complicity of the accused in the commission of offence. The only recognized principle in the circumstances is the tentative assessment of the material available on the record. So in the circumstances of the case, the case law referred to by the learned counsel for the petitioners is of no help to him and is distinguishable. Reasonable grounds are there which prima facie connect the accused petitioners with the commission of offence. Hence this petition has no substance and is dismissed. H.B.T./93/P Bail refused.