2004 PLP 1234 (YLR)

Malik Akhtar for Respondents. Javed A. Khan for the Complainant. Date of hearing: 16th January, 2004. Abid deceased (28/30) son of Noor Rehman, resident of Bara Road Nodeh Payan, Peshawar, working with Hassan Khan, Milk Seller was shot to death by two unknown assailants on 22-2-2003 at 2030 hours. Complainant Umar Saeed, brother of the deceased working as a sales man in a medicine shop, was on the way to the house when he was informed about the occurrence. The complainant immediately rushed to Khyber Teaching Hospital, Peshawar, where the victim was stated to have been taken and made a report in the casualty ward of the hospital at 2150 hours wherein no one was charged for the offence in question. However, on 26-2-2003 supplementary statements of complainant and his father Noor Rehman were recorded under section 164, Cr.P.C. wherein they implicated co-accused Motabar Khan and petitioner Sher Ali for the murder of Abid deceased. Both the accused persons were arrested.

2. Sher Ali petitioner has moved instant application for grant of bail on refusal of the same by the Courts below vide orders dated 9-12-2003 and 15-12-2003.

3. Mr. Saifullah Khalil, Advocate for the petitioner, in support of the bail application, contended that there is no direct or circumstantial evidence on the record to indicate that the petitioner had a hand in the murder of Abid deceased and that the petitioner has been implicated in the case on mere suspicion on account of being a friend of Motabar Khan co-accused. He also contended that belated statements of complainant and his father recorded under section 164, Cr.P.C. on the fourth day of occurrence, could not have been made a basis for refusal of bail to the petitioner. Additionally, he urged that motive for the occurrence i.e. murder of Mst. Razia sister of co-accused Motabar Khan at the hands of the deceased, was attributable to co-accused Motabar Khan and the petitioner had no reason to participate in the crime and take life of the deceased.

4. Malik Muhammad Akhtar, Advocate appearing on behalf of the State; assisted by Mr. Javed A. Khan, Advocate for complainant Umar Saeed bitterly opposed the bail application and submitted that prosecution is in possession of Sufficient material to connect the petitioner with the crime and having regard to the fact and circumstances of the case, the Courts below had valid reasons to decline to accept the application of the petitioner and, admit him to said. To augment the contentions, reliance was placed on Muhammad Saleem v. The State 2001 PCr.LJ 1420 Peshawar.

5. It needs no reiteration that before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsection (1) of section

497. Cr.P.C. in its totality and the sine quo non, for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497, Cr P.C. or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the cases of commission of non bailable offences and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. is not to be granted as a matter of course, with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the offence falling in the first category, the Court must refuse bail. Deeper appreciation of the evidence and circumstances appearing in the case are neither desirable nor permissible at bail stage.

6. In the instant case, complainant Umar Saeed and his father Noor Rehman in their supplementary statements recorded on 26-2-2003 have specifically charged the petitioner and co7accused Motabar Khan for the murder of Abid deceased. The charge is based on the information stated to have been supplied by Mst. Badam Bibi, sister of deceased and wife of step-brother of co accused Motabar Khan. The medical evidence, motive and recovery of three empties of .30 bore from the spot fully support the charge and prima facie proves the involvement of the petitioner in the guilt. It may be stated here that most of the submissions made by learned counsel for the petitioner touch the merit of the case and cannot be taken into consideration at this stage. I have intentionally avoided to express my opinion in this regard lest it may prejudice the case of any of the parties at the trial. All such matters are left to be tried by the trial Court after taking into account the material brought before him. As regards to the cases referred by the learned counsel, it may be observed that view taken in these cases is based on different premises and thus, not applicable to the present case. In this context it may also be mentioned that in criminal cases even for the purpose of bail, no universal rule of application can be deduced from the decision of any particular case which can be pressed into service in each case. The facts and circumstances of each case, when taken into consideration, will lead to a just conclusion as to whether an accused is entitled for the concession of bail/relief claimed in that case or not, Nazar Muhammad v. The State and another PLD 1978 SC 236 and Safdar Abbas and 2 others v. The State PLD 1987 SC 467.

7. In the light of the arguments advanced by the parties, I am of the view that petitioner has not succeeded to make I out a case for grant of bail. The application fails which is hereby dismissed. Bail is refused.

8. The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove. H.B.T./35/P Bail application dismissed.