2011 P Cr (PLP)

ATTAULLAH KHAN J.

Through this application, the accused/petitioner Samiullah Khan seeks his release on bail in case F.I.R. No. 332 dated 5-11-2010 of Police Station Ghoriwala, Tehsil and District Bannu, registered under sections 302/324/34, P.P.C.

2. According to the F.I.R. lodged by Mst. Kalsoom Bibi, the accused/petitioner together with Attaullah Jan co-accused had brutally murdered Umer Hayat by firing at him with Kalashnikovs in active connivance of Sikander Hayat over the motive of land dispute.

3. Learned counsel for the petitioner argued that the manner of lodging the report is doubtful because two person were allegedly fired at by the accused, of whom Umer Hayat died while the other Muhammad Shuja Khan escaped unhurt. Muhammad Shuja Khan is the brother of the complainant but instead of him, his sister Mst. Kalsoom Bibi has lodged the report which is not believable. His second argument is that as per site plan, there are bullet marks at points-C and D but no spent bullet has been recovered. He argued that it is unbelievable that a lady would see off the male Members as reported by the complainant in her report. The last limb of his arguments was that the accused/petitioner being a Constable in the police department, was not present on the spot but at the place of his duty.

4. On the other hand, learned counsel for the complainant and State opposed the grant of bail to the accused/petitioner on the grounds, inter alia, that the accused/petitioner is directly charged by the complainant in her promptly lodged report, the medical report of the deceased fully supports the prosecution case and besides the complainant, the occurrence has been witnessed by other eye-witnesses. Regarding the alleged plea of alibi of the accused/petitioner, it was argued that it would be thrashed out at the time of trial because the place of duty of the accused/petitioner is near to the place of occurrence being manipulated just only to create a ground for his false charge.

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

6. As per F.I.R., the occurrence has taken place at 1920 hours while the report was lodged the same day at 2045 hours. Thus the report was lodged with all reasonable promptitude and there is no chance of consultation, deliberation or false involvement of the accused. The accused/petitioner together with his co-accused Attaullah Jan are directly charged for killing the deceased Umer Hayat by firing with Kalashnikovs with the active connivance and abatement of Sikander Hayat. There are two eye-witnesses to the occurrence who fully support the contents of the F.I.R. as well guilt of the accused/petitioner. The non-recovery of any spent bullet is not a serious matter to be taken at this bail stage. The alleged plea of alibi of the accused/petitioner is a question to be determined by the trial Court. Such plea of alibi is required to be proved through exhaustive, cogent and reliable evidence and not merely on the basis of statements of few persons recorded under section 161, Cr.P.C. by the police.

7. In short, the report is very promptly lodged and the accused/petitioner is directly charged for effectively firing and killing the deceased Umer Hayat who was his real uncle along with Attaullah Jan, co-accused and in active connivance/abatement of his father Sikander Hayat over the motive of land dispute. The recovery of empties of Kalashnikovs further supports the contents of the F.I.R. that the accused/petitioner and his co-accused Attaullah Jan were armed with A Kalashnikovs.

8. On the basis of available record, the accused/petitioner is reasonably connected with the commission of the offence which carries a capital punishment and falls under the prohibitory limb of section 497, Cr.P.C.

9. Consequently, I find no merit in this bail application which is accordingly dismissed. H.B.T./53/P Bail refused.