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2015 Y L R 571
[Peshawar]
Before Muhammad Daud Khan, J
RIFATULLAH---Petitioner
Versus
ABDUL QAYUM and 6 others---Respondents
Criminal Miscellaneous Bail Petition No.17-B of 2014, decided on 10th March, 2014.
(a) Criminal Procedure Code (V of 1898)------S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd,
rioting, common object---Bail, refusal of---Delay of one hour in lodging report, was not so fatal to be
considered at bail stage, in view of 5/6 Kilometer distance between the place of occurrence and the Police
Station---Accused was directly charged for murder of the deceased in broad daylight, witnessed by the
complainant and his nephew---Parties being co-villagers inter se, there was no chance of misidentification--Single firearm entry wound on the body of the deceased, fully corroborated the F.I.R. and recovery memo--Complainant, in the F.I.R. had given a specific motive behind the offence---Prima facie case, was made out
against accused in circumstances---Accused had been attributed a specific role of effective fire-shot on vital
part of the body of deceased; co-accused, who had been released on bail, had been assigned the role of
ineffective firing---Case of accused, in circumstances, did not fall under the rule of consistency---In view of
substantial positive evidence in support of prosecution version, when otherwise there was no room for further
inquiry, plea of alibi, could not be taken into consideration---Challan had already been put in court, and the
prosecution witnesses were summoned, and case was fixed for framing of charge against accused---Accused
having committed offence which came within the prohibitory clause of S.497, Cr.P.C., his bail petition was
dismissed, in circumstances.
(b) Criminal Procedure Code (V of 1898)------S.497---Bail---Evaluation of evidence---When there was sufficient evidence in favour of the prosecution
version, and some evidence in favour of defence, the safest course open for dispensation of justice was, that
the matter be left for the Trial Court to evaluate the evidence of prosecution as well defence, and then form its
opinion about guilt or innocence of accused.
(c) Criminal Procedure Code (V of 1898)------S. 497---Bail, grant of---Principles---No observation to be made by court at bail stage, about the evidence
of either side, as it would affect their case at trial---Deeper appreciation of evidence, was not to undertaken at
bail stage, particularly, when trial had commenced, or was likely to commence in the near future, because any
expression on merits at such stage, would cause prejudice to either party, at trial.

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Muhammad Ismail's case PLD 1989 (sic) 585 ref.


Muhammad Ismail Khan Alizai and Mirzal Khan for Petitioners.
Qadratullah Khan D.A.G. for the State.
Mohammad Anwar Khan Maidad Khel and Faqir Mehboob-ul-Hameed for Respondents.
Date of hearing: 10th March, 2014.
JUDGMENT
MUHAMMAD DAUD KHAN, J.--Having unsuccessful in obtaining bail from the court of learned
Additional Sessions Judge-I, Lakki Marwat, Rifatullah, the accused/petitioner, who is involved in case F.I.R.
No.386, dated 22-12-2012, under sections 302/324/148/149, P.P.C. of Police Station Ghazni Khel, Lakki
Marwat has come to this Court for the same relief.
2.
The allegations against the accused/ petitioner as per F.I.R. referred to above are that on 22-12-2012 at
0830 hours, Abdul Qayum, the complainant along with deadbody of his brother Javed Khan, in emergency
room of Civil Hospital, Lakki Marwat, reported the matter to Muhammad Ismail Khan S.H.O., to the effect
that on the fateful day he along with his brother Javed Khan and nephew Nisar Ali had gone to the nearby
fields in order to reply the call of nature and after easing themselves they were coming back to their home;
that his brother Javed Khan was ahead, while they were following him, when they reached at a thoroughfare
at about 07.30 hours, the accused/petitioner Rifatullah, duly armed with Kalashnikov was already present
there; that when they reached near him, he (the accused/petitioner) called him (the deceased Javed Khan) that
though the compromise has been effected, but even that he would not be spared today and made a single
fire-shot with his Kalashnikov, as a result of which he was hit, sustained injury and fell down. When the
complainant and his nephew tried to attend the injured, in the meanwhile, accused Taj Ali, Muhammad
Yaqoob Khan, Barkatulah, Abdul Hameed, Saminullah, Inshaullah, duly armed with Kalashnikovs appeared
and reprimanded them not to come close the deceased and each of them made a single fire shot, but they
luckily escaped unhurt. Accused after commission of the offence decamped from the spot. The occurrence
has been witnessed in addition to the complainant by his nephew Nisar Ali. Motive behind the offence as
alleged by the complainant is that some one and half month prior to the occurrence, counter firing was made
between the parties, which matter was duly reported in the Police Station, but later on it was patched up by
elders of the illaqa, but despite that the accused/petitioner along with co-accused committed the offence. The
report was incorporated, in shape of murasila. Ismail Khan S.H.O. prepared injury sheet and inquest report
and sent the body of the deceased for post mortem examination under the escort of Constable Samiullah
No.735, whereas the murasila was sent to the Police Station, which culminated into registration of above
mentioned F.I.R.
3.
It is the contention of learned counsel for the petitioner that he (accused/petitioner) is innocent and
has been charged by the complainant falsely for ulterior motive; that the dead-body was taken from the place
of occurrence to the hospital, whereas the Police Station Ghazni Khel, comes in the way, but malafidely went
to the hospital, so as to cover the alleged delay of one hour occurred in lodging the report, on the direction of
Mir Ahmad Khan, S.H.O., Police Station Tajori, who is brother of deceased and complainant; that at the time
of occurrence, the accused petitioner was not present in his village, as he is a student of M.Com and was
residing in Hostel in the Peshawar University, Peshawar, hence on the basis of plea of alibi, the
accused/petitioner is entitled for the concession of bail. Learned counsel for accused/petitioner further

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contended that the story of F.I.R. is not attracted to the prudent mind; that the complainant has spread a wide
net and implicated seven persons of a family; that prosecution case is full of doubts for which
accused/petitioner is entitled even at bail stage.
4.
As against that learned counsel for the complainant assisted by learned D.A.G. vehemently opposed
the arguments advanced by learned counsel for the accused/petitioner. They argued that the occurrence took
place at broad-daylight and the accused/respondent along with other co-accused are co-villagers, hence, no
question of misidentification arises; That the accused/petitioner along with co- accused are directly charged
in a promptly lodged F.I.R." hence no question of false implication arises; that the F.I.R., recovery memo,
report of FSL, firearm expert report, PK report, further supplement the prosecution case; that the offence for
which the accused/petitioner is charged comes within the prohibitory clause of section 497, Cr.P.C.; that in
the F.I.R. the accused/petitioner has been given the role of effective firing at the deceased, which is different
from other co-accused who have been released on bail, hence, he cannot claim the concession of bail under
the rule of consistency: He lastly argued that the accused/petitioner has not produced any cogent evidence to
prove the plea of alibi, hence, the petitioner cannot take its benefit at this stage, as such this petition is liable
to be dismissed.
5.
I have considered the submissions of learned counsel for the parties, D.A.G. for the State, and gone
through the record, with their valuable assistance.
6.
It appears from the record available on file, that in this case the occurrence took place on 22-12-2012
at about 07.30 hours, whereas the report has been lodged on the same day at about 08.30 hours, after a delay
of one hour and the distance between the place of occurrence and the Police Station, as stated in the F.I.R. is
5/6 KM, hence keeping in view the distance and time of occurrence, the delay as alleged by learned counsel
for accused/petitioner is not so fatal to be considered at bail stage.
7.
Perusal of the F.I.R further transpires that the accused/petitioner is directly charged for murder of the
deceased in broad-daylight, witnessed by the complainant and his nephew. The parties being co-villages inter
se there is no chance of misidentification. The PM report indicates that there is a single firearm entry wound
of 1/4 x 1/4 inches on right lower chest of back and an exit wound on front side of right upper chest above the
right nipple, which fully corroborate the F.I.R. and recovery memo. Moreover, the complainant in his first
information report has given a specific motive behind the offence. When all these material pieces of evidence
taken in juxtaposition, a prima facie case is made out against the accused/ petitioner.
8.
It is the contention of learned counsel for accused/petitioner that co-accused have been released on
bail by the lower courts, hence, under the rule of consistency, the, accused/petitioner is also entitled for the
same relief, while perusal of the record reveals that the accused/ petitioner has been attributed a specific role
of effective fire-shot on vital part of the body of deceased, whereas the other co-accused, who have been
released on bail, have been assigned the role of ineffective firing, as such his case does not fall under the rule
of consistency.
9.
The contention of learned counsel for petitioner is that the accused/petitioner was a regular student of
M.Com in Peshawar University, Peshawar and at the time of occurrence he was not present at the venue of
wardaat, rather he was living in the hostel at Peshawar. In view of substantial positive evidence in support of
prosecution version, when otherwise there is no room for further inquiry, the plea of alibi cannot be taken into
consideration, at bail stage, by introducing some documents, which evidentiary value would be determined
after recording evidence at the trial. If such practice is allowed to perpetuate, every accused would procure
some documents and witnesses to get their statements recorded before the I.O. and would obtain bail on the

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ground of further inquiry. It can legitimately and validly be pressed into service, when prosecution evidence
is inherently inconsistent, defective or insufficient, requiring further inquiry into the guilt of accused, but
cannot be so lightly availed, by manufacturing a ground for the same. When there is sufficient evidence in
favour of the prosecution version and some evidence in favour of defence, the safest course open for
dispensation of justice is, that the matter be left for the trial court to evaluate the evidence of prosecution as
well defence and then form its opinion, about guilt or innocence of the accused. No observation can be made
at bail stage, about the evidence of either side, as it would definitely affect their case, at trial.
10.
It appears from the record that challan has already been put in Court and the P.Ws. were summoned,
but after arrest of accused/petitioner, the case was fixed for framing, of charge against him for 8-2-2014, but
in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. Much has
been argued before me from either side, but discussion on all these points would amount to deeper
appreciation of evidence which has always been deprecated by the Hon'ble Superior Courts at bail stage,
particularly, at a stage when trial has commenced or is likely to commence in the near future, because any
expression on merits at such stage, would cause prejudice to either party, at trial stage and this principle has
been firmly and clearly laid down by the apex Court in Muhammad Ismail's case (PLD 1989 (sic) 585).
11.
On the face of it, reasonable grounds exist for believing that the accused/petitioner has committed an
offence which comes within the prohibitory clause of section 497(1), Cr.P.C., resultantly, the petition for the
grant of bail stands dismissed. However, learned trial Court is directed to conclude the trial within a period of
two months, positively if not earlier than that.
HBT/309/P

Bail refused.

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