2003 PLP 181 (YLR)

Date of hearing: 4th October, 2002. On 11th November, 2000, Traffic Head Constable Lal Baid Khan (complainant) was on duty near Nekikhel Datsun Adda when a Suzuki Car No.2960‑RIV arrived and stopped near American Travels. Agency. In the meanwhile at about 9‑30 a.m. a boy came and started firing at the occupant of the car. The victim was hit and died there and then. Complainant overpowered the culprit and relieved him of the crime weapon i.e. pistol. The culprit introduced himself as Akbar Zada Mian son of Pakhtoon Mian resident of Kala Kalay. The name of the deceased was disclosed as Nisar Khan son of Buner Khan. The culprit was arrested and a case was registered against him vide F.I.R. No.1033 of 2000. dated 11‑11‑2000 at Police Station Mingora.

2. During investigation of the case in view of certain disclosures made by Akbar Zada Mian culprit, three persons namely Khan, Saeed and Rozi Khan were arrested. Khan in his confessional statement recorded on the following day of his arrest i.e. 27‑5‑2002 charged Suleman Khan and his brother Jehangir Khan, petitioners, for conspiracy and abetment to cause murder of their cousin Nisar Khan deceased through hired assassin. Khan also admitted having received Rs.5,000 from Suleman petitioner as advance money for commission of the crime. Saeed and Rozi Khan also made similar confessional statements and implicated the petitioners. The father and brother of the deceased in their statements recorded on 29‑7‑2002 also involved the petitioners and charged them for murder in question.

3. The petitioners were arrested on 2y‑7‑2002 and taken in custody when their pre‑arrest bail was not confirmed by the Court of Session vide order, dated 7‑8‑2002. Feeling aggrieved, the petitioners have approached this Court for grant of bail on refusal of the same by the Court below.

4. I have heard at length the arguments and submissions of Messrs Khawaja Muhammad Khan and Abdul Latif Afridi, Advocates for the petitioners and Mr. Akhtar Naveed, learned State Counsel, assisted by Mr. Asadullah Khan Chamkani, Advocate learned counsel for the complainant.

5. Learned counsel for the petitioners asserted with vehemence that there is absolutely no evidence ocular or circumstantial, implicating the petitioners with the perpetration of the crime; that the petitioners have been associated with the crime on account of political rivalry with the deceased family and that the alleged confessional statement of co‑accused recorded on 27‑5‑2002 implicating the petitioners with the guilt is neither true nor voluntary and thus the petitioners have been refused bail without any good reason. Concluding the arguments it was reiterated that had the learned trial Court taken into consideration the overall scenario of the occurrence the ultimate outcome of the plea of bail made by the petitioners would have been different. In support of the submissions reliance was placed on the cases reported as Mirhazar Malik v. The State (1999 SCMR 1377), Syed Amanullah Shah v. The State and another (PLD 1996 SC 241), Muhammad Yousaf and 5 others v. The State and another (2002 PCr.LJ 293 (Peshawar) and Anwar Khan v. The State (2002 PCr. LJ 400 (Lahore).

6. Conversely, the learned State Counsel opposed the application under consideration and attempted to argue that prosecution is in possession of sufficient evidence to connect the petitioners with the guilt being creators of conspiracy and bail has been declined to the petitioners for valid reasons which invites no interference of this Court. Additionally, it has been contended that challan has been submitted in Court and thus it would not be proper for this Court to scrutinize the plea of the petitioners regarding involuntariness of the confessional statement of Khan, Saeed and Rozi Khan. Reliance was placed on Said Akbar and another v. Gul Akbar and another (1996 SCMR 931), Muhammad Ismail v. Muhammad Rafiq and others (PLD 1989 SC 585 and Mian Dad v. The State and others (1992 SCMR 1418).

7. There is no bar in allowing bail to an accused person whose case falls within the purview of section 497, subsection (2), Cr.P.C. i.e. when the Court comes to the conclusion that there are no reasonable grounds to believe that accused‑petitioner is guilty of an offence punishable with death, life imprisonment or 10 years and that there ara grounds for further inquiry then at any stage. whether investigation, inquiry or trial the accused‑petitioner may be entitled to grant of bail. It is well‑settled principle of law that in non‑bailable offence punishable with death. imprisonment for life, imprisonment for 10 years, refusal of bail is a rule whereas grant of bail is an exception.

8. It is not denied that where the prosecution convinces the Court that there are reasonable grounds to believe that the accused has committed the crime charged with then the Court must refuse to extend the concession of bail to the accused and where the accused convinces the Court that reasonable grounds do not exist for believing that he has committed the offences/crime with which he has been charged then the Court :rust release him on bail. Bail as of right under section 497(2), Cr.P.C. is possible only when a finding is rendered that there are no reasonable grounds for believing that the accused had committed the particular offence. Najib Gul v. Khalid Khan and others (1989 SCMR 899).

9. As regard the question of further probe and inquiry into the petitioner's guilt, suffice it to observe that there is some scope for further inquiry qua the guilt of an accused in every criminal case. On this consideration alone, bail cannot be claimed by an accused as a matter of right. It must be further shown that there are no reasonable grounds for believing that the accused has committed the offence charged against him. Arbab Ali v. Khamiso and others (1985 SCMR 195), Asmatullah v. Bazi Gul and another (PLD 1988 SC 621), Mst. Resham Jan v. Abdur Rehman (1991 SCMR 1849). Mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection (2) of section 497, Cr. P. C.

10. In the instant case the charge against the petitioners is one of conspiracy/abetment, falling under section 109 of Pakistan Penal', Code. It would be for the trial Court to scrutinize it at the trial. The allegation of conspiracy and abetment against the petitioners receives corroboration from the confessional statements of Khan and others coupled with the statements of father and' brothers of the deceased. The plea of involuntariness of the confessional statement raised by the learned counsel for the petitioners would be appropriately examined, by the trial Judge and it would not be proper for this Court to look into it at the stage of bail .

11. So far as submission of challan is concerned, I find that the trial is in progress and certain witnesses have already been examined. I refrain to dilate upon the merits of the case lest it may not prejudice the judicial mind of the trial Court. The august Supreme Court of Pakistan in Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 1545) observed:‑‑ "Practice of the superior Courts is that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the 'question of prejudice'. "

12. In view of the material available on record there exists reasonable ground for believing that the petitioners have been guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years. In the circumstances, I am not inclined to exercise my discretion in favour of the petitioners are release them on bail. The application fails and the bail is refused. However, the trial Court shall conclude the trial as expeditiously as possible not exceeding four months, failing which the petitioners will be entitled to repeat their application for bail before the trial Court.

13. The observations made hereinabove are confined only to the application. They are to be considered as tentative in nature. Main case should be decided in accordance with law, uninfluenced by whatever is observed hereinabove. N.H.Q./623/P Bail refused.