The learned Additional Sessions Judge-I, Abbottabad, vide order dated 21.2.2004 has refused bail to the accused-petitioner in case F.I.R. No, 21, dated 15.5.2003 of Police Station Bakot, u/Ss. 302/324/34 PPC r/w S. 13 of the Arms Ordinance, 1965 and now through the present application, he seeks bail from this Court.
2. According to the F.I.R., recorded at the instance of complainant Muhammad Faraz, on the day of occurrence, he, his brothers Muhammad Fayyaz (deceased) and Muhammad Niaz (injured) were present in their house. At about 10.00 a.m. co-accused Muhammad Qaisar came there and asked them that he has some personal affairs with them, on which, he and his two brothers accompanied him to the old "Behak". When they reached there, the complainant saw that co-accused Arshad, Asif, Safir and accused-petitioner were already present there and on seeing them, co-accused Muhammad Qaisar started quarreling with them. Co-accused Muhammad Qaisar and the accused-petitioner caught-hold of Muhammad Fayyaz. Co-accused Muhammad Qaisar started giving him dagger blows with which he received one injury on the left side of the chest and another injury on the left wrest. Similarly, co-accused Arshad and Asif caught-hold of Muhammad Niaz and co-accused Muhammad Qaisar gave him a dagger.blow with which he received injury on left arm.
Co-accused Muhammad Qaisar also gave him stick blows. Muhammad Fayyaz, while in injured condition was being brought to the hospital when he succumbed to the injures on the way. Motive for the offence was stated to be a quarrel with co-accused Muhammad Qaisar. The occurrence was stated to have also been seen by PW Mst. Munnawar Jana, mother of the complainant, and PW Mst. Samina Bibi wife of deceased.
3. In support of the bail application, learned counsel for the accused-petitioner contended that as no active role has been attributed to the accused-petitioner in giving dagger blows to the deceased and injured Muhammad Niaz, as such, the common intention of accused-petitioner u/S. 34 PPC is yet to be determined at the trial and his case is of further enquiry. However, this argument of the learned counsel for the petitioner is without force.
4. No doubt, some-times the Courts allow bail in cases of allegations of "catching-hold of or "lalkara" but this rule is not absolute. Each case has to be decided on its own facts and circumstances. If there will be sufficient materials on record showing a prima-facie case, against the accused, this rule cannot be followed.
5. In the present case, the accused-petitioner is directly charged in the promptly lodged F.I.R. There is not only sufficient ocular evidence in support of the prosecution version but the same is also supported by the medical evidence on the record. The deceased has received one stab wound, 134" in size on the left side of the chest, another incised wound skin deep on the lateral aspect of left wrist (1/2) in size and another wound was found on his body in the shape of bruise in the lower chest. Similarly, a stab wound measuring PA" x 34" in size was found on the left posterior chest and another injury in the shape of bruise on the left shoulder on the body of injured PW Muhammad Niaz. These injuries on the persons of the deceased and the injured do not appear to be the acts of a single accused. Moreover, the accused-petitioner, after the occurrence, has remained in long absconsion for more than 8 months inspite of proceedings u/Ss. 87/88 and S. 204 Cr.P.C. which distinguishes his case from other co-accused to whom, no active role of stabbing the deceased or the injured had been attributed. There is, therefore, a prima-facie case against the accused- petitioner. In the case reported in PLD 1992 Peshawar 74, it was observed that: "the petitioner has been directly charged in the most promptly lodged report for the occurrence which has taken place in the broad daylight. The witnesses cited in the FIR have also charged him for having effectively participated in the commission of the offence and there is noticeable long abscondence which disentitles him to the concession of bail notwithstanding the merits of the case. Moreso, his role of catching hold of the deceased amounts to abetment."
5. In the circumstances narrated above, this application is without merits and is hereby rejected.