P L D 1997 Supreme Court 347 (PLP)

SAJJAD ALI SHAH, C.J.--The petitioner and five others are facing trial for offence under sections 302, 324, 148 and 149, P.P.C., for murder of Asif Iqbal and injuries to some eye-witnesses. Allegation against the petitioner is that he was armed with a pistol and raised Lalkara. According to the F.I.R., petitioner was armed with pistol while other co-accused were armed with rifles when they opened attack on Asif lqbal and others at the door of the District Court, Rawalpindi on 31-8-1995 at 7-45 a.m. Prosecution case is that deceased Asif Iqbal and the injured eye-witnesses minus Yaqoob and Akbar Ali were accused in the previous murder case in which Humayoon (real brother of the petitioner) had been murdered and in connection with hearing of that case the deceased and his other companions had come to the Court to attend the hearing.

2. Petitioner applied for bail before the trial Court, which is Special Court set up under the Suppression of Terrorist Activities Act, 1975 at Rawalpindi but his bail plea was rejected vide order dated 2nd October, 1996. He submitted bail application before the High Court, which has been dismissed vide order dated 29th October, 1996 by a Division Bench. It appears that the bail plea had been urged before the trial Court and the High Court on the ground that as per prosecution the only allegation against the petitioner is that he raised Lalkara and A, since no other overtact had been imputed to him with regard to the causing of injuries, he was entitled to bail. Perusal of the order passed by the High Court shows that the petitioner was nominated as accused in the F.I.R., which was lodged promptly and not only specific role of raising Lalkara has been imputed to him in the F.I.R., but also'it is mentioned that he had abetted the crime and participated in the attack. It is also observed by the High Court that the petitioner was motivated as Asif Iqbal deceased in this case was being tried for murder of Humayoon, who was real brother of the petitioner.

3. Mr. Abdul Karim Khan Kundi, learned counsel for the ,petitioner, contended before us that it is a case of raising Lalkara simpliciter as per F.I.R., hence the petitioner is entitled to bail. In support of the proposition reliance is placed by the learned counsel on the case of Abdul Aziz v. Bashir Ahmad and another PLD 1966 SC 658 in which bail has been granted in the case in which there was allegation of Lalkara only. Perusal of the judgment shows that in this case bail was granted not only on the ground of Lalkara only but there were other factors as well, such as age of the appellant, infirmity which was borne out of the certificate of jail doctor and also the fact that after recording of evidence the case had been committed to the Court of Session. It, therefore, follows that bail was granted after consideration of several grounds and it was not granted on the sole ground of Lalkara. The learned counsel for the petitioner has also cited before us the case of Amanat Ali v. State 1993 SCMR 1992 which is a very short order granting leave after which appeal was allowed and bail was granted on the ground that there was allegation of Lalkara only against the petitioner.

4. On the other hand Sardar Muhammad Ishaque, learned counsel for the complainant/respondent has submitted before us that prosecution case is not only that the petitioner raised Lalkara but it is alleged that he came armed alongwith five other co-accused and participated in the attack. The petitioner was armed with pistol and the remaining co-accused were armed with rifles and it is mentioned in the F.I.R., that in the result of firing by all the accused, the deceased and six eye-witnesses sustained injuries including Yaqoob and Akbar Ali. It is further submitted by the learned counsel for the complainant that after the incident the petitioner absconded and was arrested on-23-9-1995 which was after twenty-three days of the incident. From the spot twenty-four empties of rifles and five empties of .30-bore pistol were recovered which were already sent to Forensic Laboratory before arrest of the petitioner. After arrest the petitioner led to recovery of .30-bore pistol which was put into a sealed parcel and sent to the laboratory and the report of the ballistic expert is positive showing that the five empties of .30-bore have matched with the pistol recovered from the petitioner. The learned counsel has further submitted that the murder in the instant case was committed in Zila Kacherry and the motive is also attributed to the petitioner as Asif Iqbal deceased in the instant case was being tried for murder of Humayoon 'who was real brother of the petitioner and in such circumstances there was sufficient material of incriminating nature to show the active participation and complicity of the petitioner in the perpetration of the crime.

5. The learned counsel for the complainant has relied upon the case of Mubarik Shan v. The State 1986 SCMR 1681 in which bail was refused to the petitioner on the ground that it was alleged against him that not only he shouted Lalkara but motive was also attributed to him.

6. Another point urged by the learned counsel for the petitioner is that two independent witnesses, namely, Yaqoob and Akbar Ali who are alleged to have been injured at the time of incident in this case and are not related to deceased Asif Iqbal have stated in their statements that Burqaposh accused persons had fired, who could not be identified. In such circumstances, cloud of doubt is cast on the ocular testimony on account of statements of these two independent eye witnesses. On the other hand the learned counsel for the complainant has submitted that Yaqoob and Akbar Ali were not connected with deceased Asif Iqbal and other persons as they were present in the Court in connection with some other case and were hit during the attack accidentally and were injured and taken to the hospital fromwhere they were allowed to go home. Their statements under section 161, Cr.P.C., were recorded on 5-9-1995 in which they had not mentioned the fact that the assailants were Burqaposh. It is further stated by him that both these witnesses later came to the police station on 5-10-1995 and produced their written statements in which they had mentioned this fact and the investigating officer placed those statements on the record after making such entry in Zimini.

7. Be that as it may, we do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that they would still be examined in the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i.e. statements of four injured eye-witnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30-bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times; take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits. In the instant case we are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the F.I.R., against him and there is positive report of the Ballistic Expert that the five crime/empties were fired from the pistol which was recovered from the petitioner and the fact that he was arrested after a delay of twenty-three days.

8. For the facts and reasons stated above, leave is refused and the petition is dismissed.

9. The learned counsel for the petitioner has also pressed bail plea on the ground of statutory delay and has contended that the petitioner, even if the whole case is proved against him, would not be convicted and sentenced to death but at the most would be sentenced to life imprisonment and hence is entitled to bail because more than two years have elapsed and the trial Court has not concluded the case.. This plea was not raised by the petitioner before the trial Court or the High Court. In such circumstances, it is open to the petitioner to raise this plea before the trial Court. M.B.A./N-482/S Petition dismissed.