' The petitioners stand involved along with others in case F.I.R. No,16 dated 12-3-2003 registered at Police Station Gomal, Tank at the instance of complainant Sher Muhammad in respect of offences under sections 302/148/149, P.P.C. The prayers of the petitioners for grant of bail has been declined by the Courts below vide orders, dated 17-4-2004 and 8-6-2004 respectively. The petitioners have approached this Court with the similar request.
2. Precise allegation against the petitioners is that they on 12-5-2003 at 12-30 hours in the limits of village Jatta, District Tank, sharing common intention with co-accused, committed murders of Abdur Rahim, Gul Zarin, brothers of the complainant and another namely Hathi Khan by firing at them.
3. Mr. Salahuddin Khan Gandapur, Advocate for the petitioners highlighted following points in support of bail application:--
(a) that there is an inordinate delay in lodging of F.I.R., which per se casts a doubt on truthfulness of the prosecution case.
(b) that the prosecution has thrown a wide net and all the male members of the family have been roped in on account of previous deep rooted enmity of the complainant party with the accused- petitioners;
(c) that there is no independent eye-witness of the occurrence and the prosecution version stands belied by medical evidence and site plan; and
(d) that despite alleged indiscriminate firing, the Datsun in question has not been damaged by any fire shot which clearly suggests that the occurrence has not taken place in the manner as alleged.
' In this regard, reliance has been placed on Shafi Muhammad v. The State 2002 PCr.LJ 494 (Karachi) and Aftab Hussain v. The State 2004 SCMR 1467.
4. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Muhammad Zahid, Advocate for the complainant opposing the bail application maintained that in view of the direct charge, supported by eye-witnesses coupled with medical evidence, recovery of crime-empties from the spot, motive and noticeable absconsion of the petitioners bail has been refused to the petitioners for valid reasons and no legitimate exception can be taken to it.
To substantiate the pleas, reliance was placed on Geraz Khan v. The State and another PLD 2004 Pesh. 160, Khan Sherin v. The State PLD 2004 Pesh. 101 and Abdus Samad Khan v. The State and another 2004 PCr.LJ 110 (Peshawar).
5. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of section 497, Cr.P.C. In its totality and the sine qua non for releasing an accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C. Or to prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the case of commission of a non-bailable offence and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. Is not to be granted as a matter of course, with the simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.
6. It is settled principle of law that at bail granting stage the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question and hence, no detailed inquiry is to be made by the Court.
7. It is, undoubtedly, within the discretion of the competent criminal Courts to grant bail to the accused, even in appropriate murder cases. They are, however, under heavy duty to exercise their discretion C fairly, justly and properly which, in any case, should be based on good grounds to meet the ends of justice. In the instant case, I find that the petitioners have been directly nominated in the F.I.R. For commission of the offence. The medical evidence, recovery of empties of 7.62 bore from the spot, motive and unexplained abscondence of the petitioners extending over one year fully support of the charge. The prosecution D allegations are surely sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. For admission of petitioners on bail. After receiving evidence, it is for the trial Court to give weight to the prosecution evidence in its own wisdom. At bail stage, evidence of the parties could not be E assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case. In the instant case I find that F petitioners have been directly nominated in the F.I.R. For commission of the offence.
8. Perusal of the record also reveals that the trial has commenced and next date of hearing has been fixed. In a case where trial has commenced and merits of the case are also such from which a case cannot be made out for further inquiry, this Court will not exercise discretion in favor of the petitioners.
9. The learned counsel for the petitioners has cited various authorities in support of his contentions which have circumstances as not identical with the one available in the present case, therefore, are distinguishable. These cases have no application to the facts of the present case and need no analytical survey. Even otherwise law in a particular case especially in bail matters, has small applicability to the H facts of other cases. Therefore, if bail' is granted in one criminal case, it is not necessary that' the same should be granted in the other case.
10. In view of the above discussion, the application of petitioners fails which is hereby dismissed and bail is refused.