2021 PLP 347 (YLR)

ABDUL HAMEED BALOCH, J.

Through this order I intend to dispose of above bail application filed by the applicants for their release on bail in case pursuant to FIR No. 15 of 2019, registered under Sections 302, 109, 147, 148, 149 Pakistan Penal Code (P.P.C.) with Police Station Adil Pur District Sohbat Pur.

2. Precise facts of the case are that on 29th May, 2019 case FIR No. 15 of 2019, under above mentioned section was registered with above Police Station on the report of Nabi Bakhsh alleging therein that the applicant/accused along with co-accused in furtherance of their common intention and on the abetment of Ghulam Nabi made firing on them, due to which his paternal cousin Gohram son of Talib Hussain received fire shot and fell down on the ground and succumbed to the injuries at the spot and they luckily escaped injuries by taking shelter behind the mound. The motive was alleged to be land disputed.

3. After registration of FIR, formal investigation was carried out and challan of the case was submitted before the trial court. The applicants moved application for their release on bail, but their request was declined by the trial court vide order dated l9th February, 2020, hence the applicants are before this court for the same relief.

4. Learned counsel for the applicants contended that the applicants are innocent and have falsely been implicated in the instant case. No specific role has been attributed to the accused/ applicants. No incriminating material has been recovered from the accused/ applicants the co-accused Ghulam Mustafa has already been granted bail by this court, therefore as a rule of consistency, the applicants/accused are also entitled for concession of bail.

5. On the other hand, the learned State Counsel strongly opposed the contention of learned counsel for the applicants and stated that the applicants are duly nominated in the FIR with the role of firing which was promptly lodged and there is incriminating evidence available on record connecting the applicants with the commission of the offence. He prayed for dismissal of application.

6. I have heard the learned counsel as well as learned APG and have perused the record with their able assistance. The perusal of record reveals that the applicants are duly nominated in the FIR and subsequent to their arrest, the applicant Sikandar made disclosure, whereafter on his pointation the alleged crime weapon i.e. Kalashnikov was recovered, whereas applicant/accused Karim Bakhsh also made disclosure and on his pointation the alleged weapon i.e. TT Pistol was recovered. Though the disclosure before the police is not admissible in evidence, but where the disclosure follows the discovery of new facts, the same is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984, which reads as under:

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Since the alleged crime weapons were recovered on the pointation of the applicants Nos.2 and 3 and the court is required to take decision on the basis of material available on the record as deeper appreciation of evidence at bail stage is not permissible. Tentative assessment of the evidence prima-facie connects the applicants Nos.2 and 3 in the commission of alleged offence, as such they are not entitle for grant of bail for such a heinous crime. Reliance is placed on the case of Mumtaz v. State 2012 SCMR

556. However, the case of the applicant No.1 is concerned, he has been nominated along with co-accused in the FIR. Mere nomination in the FIR does not make a ground for refusal of the bail. The record reveals that the allegation is general in nature. No specific role has been attributed to the applicant. The role of the accused has to be determined at the trial. Mere disclosure is not ground for refusal of bail. During investigation no recovery of crime weapon was effected from applicant No.l. In view of the material available on the record the matter calls for further probe into the guilt of the accused/applicant No.1. In this regard reliance is placed on the case of Subeh Sadiq alias Saado alias Kalu v. The State 2011 SCMR 1543 and Muhammad Ismail v. Muhammad Rafique PLD 1989 SC

585. In view of above, the application to the extent of applicants namely Sikandar and Kareem Bakhsh is dismissed, however to the extent of applicant namely Khamisa son of Mir Muhammad alias Miro, the same is allowed. The applicant Khamisa son of Mir Muhammad alias Miro is granted bail in case pursuant to FIR No. 15 of 2019, under sections 302, 109, 147, 148, 149, P.P.C., Police Station Adil Pur District Sohbat Pur, subject to furnishing surety in the sum of Rs. 200,000/-(Rupees two hundred thousand) with PR bond of the like amount to the satisfaction of trial court or Additional Register of this Court. The observations made above are tentative in nature and shall have no bearing on merit of the case. ADN/51/Bal. Bail granted.