Meraj petitioner along with others, stands involved in case F.I.R. No,645 dated 11-11-2004, registered under sections 302/324/148/149, P.P.C. at the instance of Gohar Ali complainant. The petitioner and his accomplices are accused of having, on 11-11-2004 at 13-00 hours in the land situated in Deh Bedana within the precinct of Police Station Wari, District Dir, resorted to firing with kalashnikovs, which culminated in the murders of Zulam Khan and Fazle Rabbi and attempted murder of Gohar Ali complainant and Azam Khan. The petitioner moved an application for his release onwhich was dismissed by order, dated 28-3-2005 of Izafi Zilla Qazi/Additional Sessions Judge, Wari.
2. The petitioner, feeling aggrieved, has moved instant application with'the similar prayer.
3. Khawaja Muhammad Khan Gara, Advocate learned counsel for the petitioner, in support of the bail application, contended that there is nothing incriminating on the file which could connect the petitioner with the commission of crime except bare allegations in the F.I.R.; that the prosecution has thrown a wide net and implicated all the male members of the family in the crime in the background of enmity and suspicion; that the petitioner is son of Gul Asfar and not of Karim and that the petitioner being a Government servant was performing his duties in Dir Levies and was not at all present in the area, on the spot and time of occurrence. The petitioner has taken the plea of alibi supported by oral and documentary evidence, so his participation in the commission of the offence is out of question. To substantiate the pleas, he placed reliance on Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCM R 1829; Khalid Javed Gillan v. The State PLD 1978 SC 256 and Asmatullah and another v. The State and another 2004 PCr.LJ 2023 (Peshawar).
4. Controverting the arguments of learned counsel for the petitioner, Mr. Wasim Tariq, Advocate appearing on behalf of the State assisted by Mr. Roohul Amin, Advocate for the complainant bitterly opposed the bail application and maintained that prosecution is armed with sufficient material to implicate the petitioner with the crime and material on record clearly shows that there are reasonable grounds to believe that the petitioner is guilty of the offence charged with and as such not entitled for the concession of bail. In this regard, reliance was placed on Habibur Rehman Khan v. S. Mustafa Abbas and others PLD 1989 SC 20; Iqbalur Rehman v. The State PLD 1974 SC 83 and Faiz Bakhsh alias Faizu v. The State and another 1989 SCM R 977.
5. To consider the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.
6. It would be seen that in matters concerning bail, the exercise carried out by the Court is a preliminary one and is restricted to a tentative sifting of the evidence on record opposed to an elaborate sifting of the case. The Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail.
7. Applying the above principle to the case in hand, it would be seen that the alleged incident is one of broad-daylight. The crime in-question having taken place on 11-11-2004 at 1-00 p.m., the matter was reported to the police with promptitude at 15-45 p.m. in the hospital. The petitioner is one of the accused persons directly nominated for having participated in the commission of crime.
The medical evidence and witnesses of the spot namely Zalim Khan, Umerzada, Amirbaz, Kaloom Khan and Gohar Ali complainant fully support the charge. Nine empties of 7.62 bore have been recovered from the spot. The occurrence having taken place on 11-11-2004, the petitioner was handed over to the police on 28-2-2005. He remained fugitive from law for sufficient long time. The plea of alibi raised by the petitioner, in view of the attending facts and circumstances of the case, cannot be taken into consideration at this stage. Without going deep into the merits of the case, I find that no case for grant of bail has been made out. The rulings cited on behalf of the petitioner are distinguishable and speak of the different situation. Needless to emphasize that an authority in one bail matter is not necessarily to be applicable in the other bail matter because every case is to be decided keeping in view its own peculiar facts and circumstances. The application is rejected and the bail is refused.