2011 PLP 779 (YLR)

ATTAULLAH KHAN, J.

Hukum Zad Khan accused/petitioner has filed this application for his release on bail in case F.I.R. No. 41 dated 31-8-2010 under section 302/34, P.P.C. of Police Station Bakka Khel, District Bannu.

2. According, to the F.I.R. lodged by Mst. Mehbooba, the accused/petitioner along with his two sons co-accused are charged for effectively firing with Kalashnikovs at Ehsanullah and Mst.Noor Meena with which they were hit and died on the spot over the previous blood feud enmity between the parties.

3. Learned counsel for the petitioner argued that there is a delay of seven hours in lodging the first report which has not been explained and, therefore, the element of consultation, deliberation and false charge cannot be ruled out. He argued that the site plan contradicts the contents of the F.I.R. to the effect that in the F.I.R., the complainant has stated that she saw the accused at the time of occurrence, while according to the site plan, she was present at point No.1 which was outside the Burj wherein the accused had allegedly fired at the two deceased. According to the learned counsel, it was not possible for the complainant to see the occurrence. He further submitted that according to the police diary dated 23-10-2010, the involvement of the accused/petitioner in the occurrence is doubtful.

4. On the other hand, learned counsel for the complainant and State submitted that it is a day light occurrence. The accused/ petitioner is known to the complainant and, therefore, there is no chance of mistaken identity. Regarding delay in lodging the F.I.R., their contention was that due to non-availability of transport, the lodging of the report was delayed. They argued that there is previous enmity between the parties which promoted the accused to commit the offence.

5. I have carefully examined the record and considered the arguments of the learned counsel for the parties.

6. As far as the alleged delay is concerned, it has been sufficiently explained by the complainant in the F.I.R. that due to non-availability of transport, the lodging of the report was delayed. It is a double murder case and arrangement for transporting the dead bodies to the hospital might have consumed time which is but natural. So the delay in lodging the report is explained unless rebutted at the trial.

7. Regarding the alleged contradic tions between the contents of F.I.R. and site plan, it may be pointed out that this plea needs evidence which is to be recorded at the stage of trial and cannot be discussed at this bail stage. The argument of the learned counsel for the petitioner that what barred the complainant to see the occurrence from point No. 1 also relate to the merits of the case and cannot be taken into consideration at this stage. So far as the opinion of the police is concerned, it is mere an opinion as no cogent reasons have been given. On the basis of police report or opinion, an accused cannot be declared innocent. The effect of innocence or guilt of an accused being a question of fact can only be determined after recording evidence.

8. The accused/petitioner is directly charged by the complainant. There are other two eye-witnesses to the occurrence. The delay has been sufficiently explained. The empties recovered from the spot are that of Kalashnikovs with which the accused were armed at the relevant time. The record also suggests that there is previous enmity between the parties.

9. Therefore, tentative assessment of the materials so far brought on record reasonably connect the accused/petitioner with the commission of the offence due to which he is not entitled to the discretionary relief of bail.

10. Consequently, I find no merit in this bail application which is accordingly dismissed. H.B.T./52/P Bail refused.