1991PCr (PLP)

ABDUR REHMAN KHAN, J: -- The two petitioners, who are brothers inter se, alongwith four others (absconders) have been accused by Muhammad Azam for the murder of his brother in F.I.R. No.145, dated 22-5-1990 of Police Station Bannu Cantt. It is stated in the report that on that day the reporter alongwith his deceased brother and two other P.Ws. were proceeding towards People Bazar for making certain purchases and while so going the deceased was ahead of them who was followed by the complainant and the two P.Ws. were coming behind the complainant. The complainant noticed the present two petitioners alongwith Amir accused (absconder) sitting on the western side and the remaining three absconders towards eastern side of the thoroughfare armed with Kalashinkov, .303 bore rifle and .12 bore shot gun, who fired at the deceased with their respective weapons and as a result he was hit and died on the spot. Previous blood fued was shown as motive for the crime.

2. The request for bail of the petitioners was not accepted by the learned Courts and hence he has moved this Court for the same purpose.

3. The learned counsel pleading for the petitioners submitted that it is a typical case of the usual prevalent practice of letting the net too loose to involve so many persons on account of malice and ulterior motive in order to subject them to undue harassment; that according to the medical evidence there is only one entrance wound while six accused are alleged to have fired at the deceased as a result of which he was hit; that the post-mortem report also belies the site plan as the injuries sustained by the deceased were not possible from the points from which the accused are alleged to have fired nor these injuries were possible with a shot gun from the distance shown in between the accused and the deceased; that no blood was recovered from the spot; that recovery of empties from the spot is I proportionate to the number of the accused and lastly he referred to the opinion of the police exonerating the involvement of the petitioners in the crime. From all these submissions the learned counsel wanted to persuade the Court to hold that neither the occurrence has taken place in the manner as alleged by the prosecution nor it has taken place at the site indicated in the site plan.

4. The learned counsel for the State as well as the one engaged privately by the complainant replied that such a detailed scrutiny and appreciation of the materials on record as pointed out by the counsel for the petitioners would not be possible at bail stage; that in view of the direct charge in the F.I.R. in the incident which occurred at day time; that being members of the unlawful assembly each of the petitioners would be liable irrespective of the role played by him and that the petitioners have remained absconders, therefore, according to them the discretion has been exercised in accordance with law by the lower Courts.

5. It is settled legal position that neither elaborate or deep assessment of the evidence on record nor detailed discussion on various items of evidence which the prosecution intends to produce at the trial is possible at bail stage. However, provisional and tentative sifting of the evidence is not prohibited. It can also not be denied that whatever is alleged in the F.I.R. cannot in all cases be taken as conclusive or gospel truth. If the allegations in the F.I.R. are prima facie negatives by the other materials patent on record then that can also be taken into consideration and it would not be advisable and just to ignore these materials on account of the direct charge in the F.I.R. If such defects and doubts in the prosecution case are pointed out at the time of arguments even at bail stage then those cannot be totally ignored merely because the accused is directly charged in the F.I.R. but these can be kept in view qua the charge in the F.I.R. and tentative assessment of these defects can be made even at bail stage. It has been repeatedly held by superior Courts that any observation at the time of disposal of bail application would not affect the further course of the case at the trial as those observations would be only tentative in nature and would be confined to the question of the determination of the bail application.

6. The points argued on behalf of the petitioners for bail are patent or record and could not be controverted. The benefit of doubt can be extended to the petitioners on the basis of these factors even at bail stage as these render their case arguable for bail. I refrain from detailed discussion of the points raised on behalf of the petitioners lest it may prejudice the case of either side and which is 'the function of the trial Judge and can be undertaken after the examination of evidence. The alleged abscondence of the petitioners for 13 days is not that much noticeable and would require evidence to be proved. Moreover, on account of the points raised their case would require further scrutiny and would thus fall under section 497(2), Cr.P.C., therefore, the alleged abscondence would not be a hurdle in his way to claim bail.

7. This application is, therefore, accepted and the petitioners are allowed bail in the sum of Rs.50,000 each with three sureties each in the like amount to the satisfaction of the Ilaqa/Duty Magistrate. N.H.Q./1134/P Bail allowed.