2011 PLP 1652 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner herein seeks his release on bail after refusal of the same by the lower forums in case F.I.R. No.628 dated 19-10-2010 of Police Station Shahbaz Garhi District Mardan.

2. Occurrence in this case was reported by one Saeed Rahim son of Abdur Rahim that he along with his two nephews Fahad Zia, the deceased and Sarwar Ahmad, was going to village Baru when they reached near syphen, they were attacked upon by Javed Akbar, Ikram and Mahmood by firing at them with their respective weapons and resultantly Fahad Zia (deceased) was hit who succumbed to his injuries and being empty handed, they could not retaliate. Motive for the offence was stated to be a blood feud between the two parties. The occurrence was witnessed by one Sarwar Ahmad, his nephew.

3. Learned counsel for the petitioner in support of his petition for bail submitted that petitioner being innocent, was falsely implicated in the case who himself surrendered before the local police on 2-11-2010 and produced sufficient evidence regarding his innocence. He next contended that the petitioner being an old age person of 75/76 years of age was required to be released on bail but the fora below have failed to consider even this aspect of the case.

4. As against that learned counsel for the complainant vehemently opposed the bail application of the petitioner by submitting that deep appreciation of material available on the record is not permissible at the bail stage as was argued by the learned counsel for the accused/ petitioner and the plea of alibi raised by the accused is nothing but an afterthought story which too has been contradicted by his own application and the statements of alleged witnesses produced for the plea of alibi. Similarly, all the persons produced by claiming his innocence were his close relatives and no one was named in his application for re-investigation of the case. The alleged plea of alibi was even not accepted by the Investigating Officer. His next contention was that mere old age can in no way be a sufficient ground for release of a person on bail unless the plea of old age is supported by the plea of infirmity and sickness. Learned A.A.-G. present in court supported the version of the learned counsel for complainant and requested for dismissal of the bail application.

5. Learned counsel for the parties as well as learned A.A.-G. for the State were heard and record of the case was gone through.

6. Record of the case would reveal that the accused/petitioner along with his other two co-accused was directly charged in promptly lodged F.I.R. for committing the murder of one Fahad Zia. Blood-stained earth and recovery of empties were also effected from the spot and the post mortem report has also supported the version of the prosecution. The available record on the file would prima facie suggest the involvement of the accused/petitioner with the commission of offence.

7. Now coming to the plea of alibi raised by the accused/petitioner, no doubt, that can be considered at bail stage and the same can well be accepted even in the cases of capital punishment, if the peculiar facts and circumstances of the case so justify. Here in this case, though the accused has raised a plea of his innocence but the same, without prejudice to any body, is not of the nature that should be accepted as it is such plea would require its appreciation by the trial Court and let the trial Court should decide its genuineness. In presence of prima facie involvement of accused/ petitioner in the commission of offence, such plea of the accused/petitioner at this stage cannot be considered unless proved as much could be said on either side.

8. Now comes the question of old age of the accused/petitioner. According to law, mere old age of an accused has never been considered by the superior courts to be a sufficient ground for release of an accused on bail. However, case of an infirm and sick person can be considered for the purpose of bail whereas the case of accused/petitioner is silent in this regard and nothing of the sort has been brought on the record.

9. So in this view of the matter, the case of the accused/petitioner is not a fit case for his release on bail. The instant bail application being meritless is dismissed as such. H.B.T./147/P Bail refused.