PLJ 2013 Cr.C.
(Peshawar) 543
[Abbottabbad Bench]
[Abbottabbad Bench]
Present: Waqar Ahmed Seth, J.
MUMTAZ and
another--Petitioners
versus
STATE and
another--Respondents
Cr. M. No. 686-A
of 2012, decided on 4.1.2013.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324 & 34--Bail, dismissal
of--Prohibitory clause--Injured has assigned specific role of causing injuries
with 30-bore pistol to the present accused petitioners--Similarly, the medical
evidence and the fire-arms expert's report also support the version of the
prosecution at this stage--Moreover, the trial has been commenced and surely,
the veracity, evidentiary value and the admissibility of the said statement of
the deceased would be determined by the trail Court after recording evidence of
the prosecution--At this stage the accused petitioners are `prima facie'
connected with the commission of the offence, which definitely falls within the
prohibitory clause of Section 497 of Criminal Procedure Code, 1898--Bail
dismissed. [P. 546] B
Bail--
----Tentative
assessment of evidence--Principle--At bail stage only the tentative assessment
of evidence is to be made and deeper appreciation of evidence is neither
required nor warranted by law, therefore, the Court has to tentatively form its
opinion by assessing the evidence available on record without going into the
merits of the case. [P. 545] A
Mr. Saeed Akhtar Khan, Advocate for
Petitioners.
M/s. Muhammad Nawaz Khan Swati, AAG for State.
Date of hearing:
4.1.2013.
Judgment
Mumtaz and Jalal Khan seek their post arrest bail in case FIR No. 809
dated 06.08.2012 for offences chargeable under Sections 302/324/34 of Pakistan
Penal Code, 1860 read with Section 13 of the Pakistan Arms Ordinance, 1965
registered in Police Station Havelian, District Abbottabad.
2. The case of
the prosecution, as set up in the FIR, is that the complainant Jumma Khan son of Ghulam Khan on
06.08.2012 at 12.00 hours reported to the police in RHC Havelian
that his brother Tahweez Khan alongwith
his son Zar Gul Khan, came
from Taxila to Sultanpur Havelian to participate in funeral ceremony of his maternal
aunt's daughter wife of Hanif Khan, which was to be
held at 9.00 a.m.; that at about 09.45 a.m. Azam
Khan, son of his maternal uncle informed him that after funeral, his brother Tahweez Khan was done to death on the spot by Zareen son of Mirza, Mumtaz son of Amir Khan and Jalal
Khan son of Rozi Khan with fire-arms, while his
nephew Zar Gul Khan was
seriously injured, who was being taken to the hospital by the people; that on
receipt of this information, he reached there and found dead body of his
brother in RHC Havelian and his nephew was taken to
Hospital at Abbottabad for treatment; and that the
motive for the offence was previous enmity.
3. Learned
counsel for the petitioners argued that the petitioners were falsely implicated
due to previous enmity; that the person who allegedly informed the complainant
about the incident has negated the version of the complainant in his statement
recorded under Section 164, Cr.P.C., that there is
nothing incriminating on the record, which could connect the accused
petitioners with the commission of the offence; that PWs Nasim
Gul and Abdul Haleem Khan
also sworn affidavits, wherein, they disowned their statements to have been
recorded under Section 161, Cr.P.C. at their
instance; that three accused are charged for causing injuries to Zar Gul Khan and it was not clear
on record that with whose fire shot he was hit; and that the case of the
accused petitioner is arguable for the purpose of bail and absconsion
alone is not sufficient for refusing bail to them, as bail cannot be withheld
as punishment. Learned counsel for the petitioner placed reliance on Abid Ali vs. The State (2011 SCMR 161), Muhammad Umar vs. The State and another (PLD 2004 SC 477), Sanjay
Chandra and others vs. Central Bureau of Investigation and others (2012 SCMR
1732), Pur Bux vs. The
State (2012 SCMR 1955), Rehmat Ali and another vs.
The State (1979 SCMR 30), Ghulam Abbas
vs. The State (1996 SCMR 978), Roshan Din and another
vs. The State (2001 MLD 1890), Muhammad Ali vs. The State (2008 PCr.LJ 87), Mitho Pitafi vs. The State (2009 SCMR 299), Maulvi
Hanif vs. The State (2007 YLR 388), Nazar Hussain vs. The State and
another (2008 PCr.LJ 1505), Ijaz
Ahmad and another vs. The State (1997 SCMR 1279), Gul
Hassan vs. The State (2002 MLD 1502), and an unreported judgment of this Court
in case titled Taj Muhammad vs. The State decided on
13.10.2008.
4. Conversely,
learned AAG argued that the accused petitioners were directly charged for commission
of the offence for dual murder, that the occurrence had taken place in a broad
day light after the funeral; that deceased Zar Gul Khan in his statement under Section 161, Cr.P.C., which is to be admitted as dying declaration in
the evidence by the trial Court, has duly charged the accused petitioner for
effective firing and causing him injuries before his death; that the report of
fire-arms expert regarding empties and .30 bore pistol recovered on the pointation of accused petitioner Jala
Khan was in positive; and that the trial in the case has commenced. In support
of his arguments, learned AAG relied on 1990 SCMR 307.
5. The Valuable
arguments of the learned counsel for the parties heard and the available record
of the case thoroughly considered.
6. It is by now
settled principle of law that at bail stage only the tentative assessment of
evidence is to be made and deeper appreciation of evidence is neither required
nor warranted by law, therefore, the Court has to tentatively form its opinion
by assessing the evidence available on record without going into the merits of
the case.
7. No doubt, PW Azam Khan, as per contents of the FIR had informed the
complainant about the occurrence, has resiled from
his statement and similarly, PWs Naseem Gul and Abdul Haleem, have also negated the version of the complainant in their
statements recorded under Section 164, Cr.P.C.
However, the most important piece of evidence available on the record is the
statement of Zar Gul Khan deceased
recorded under Section
161, Cr.P.C. by the Investigating
Officer two days before his death on 6.8.2012, wherein, he has
categorically charged the present accused petitioners for causing him injuries
by firing at him with .30 bore pistol. Thus, the injured person, who is now
dead, is generally the principle witness and was likely to know more than any
other person about the cause of his death. So, Zar Gul Khan, then injured has assigned specific role of
causing injuries with .30-bore pistol to the present accused petitioners.
Similarly, the medical evidence and the fire-arms expert's report also support
the version of the prosecution at this stage. Moreover, the trial has been
commenced and surely, the veracity, evidentiary value and the admissibility of
the said statement of the deceased would be determined by the trial Court after
recording evidence of the prosecution. Hence, in view of peculiar facts and
circumstances of the matter, at this stage the accused petitioners are `prima
facie' connected with the commission of the offence, which definitely falls
within the prohibitory clause of Section 497 of Criminal Procedure Code, 1898.
8. Accordingly,
for the reasons stated hereinabove, the present application for post arrest
bail is dismissed.
However, the
trial Court is directed to conclude the trial of the petitioner, within a
period of three months, if not earlier, from the date of receipt of this order.
(A.S.) Bail dismissed
