1. This revision petition has been directed against an order of Additional District Criminal Court Dudyal Camp Mirpur passed on 15.4.2010, whereby the bail application filed, by the accused- petitioner was dismissed.
2. The 'facts precisely stated are that Syed Aftab Hussain Shah, complainant, orally stated before the Police in Dudyal. Hospital that he is resident of Mohallah Sadaat Sector/6 Dudyal and by profession he is a laborer. Shahid is residing in his neighborhood, who prepares the maps of houses and also builds houses on contract basis. The complainant entered into a contract of the house of his close relative Barkat Hussain with. Shahid but he did not start construction work for many days, whereupon the complainant went at his residence on 7.4.2007 at 10:05 pm and inquired from him as to why he did not start the building but Shahid enraged and started hurling abuses. In the meantime, his brothers Asif armed with a .30-bore pistol, Arif and his father Wazir arrived there.
3. When the complainant forbade them not to abuse him then Arif, Shahid and Wazir caught hold of him and Asif fired a straight shot on his belly, which hit him on his right side of the chest_ He also fired a second straight shot, which hit him on his left foot. On hearing hue and cry, Mudassar Ali and Auon Abbas arrived at the spot, who rescued him and witnessed the occurrence.
4. The motive behind the occurrence has been stated to be a dispute of the construction of the house.
5. In the light of above statement, a Murasala was sent to Police Station by Ziaullah Additional SHO Dudyal whereby a case was registered against the accused under Sections 324, 506 & 34, APC.
6. Later on Syed Aftab Hussain Shah, injured, succumbed to the injuries; therefore, the offences under Sections 302, APC & 13/20/65, AA were added and an offence under Section 324, APC was deleted.
7. After usual investigation, the challan in the aforesaid offences was submitted before the trial Court on 19.6.2007 wherein the names of absconding accused Muhammad Arif, Muhammad Kalim Shahid and Wazir Muhammad were recorded in column (2) of the challan as absconders, Muhammad Asif, accused, after arrest, presented a bail application before Additional District Criminal Court Dudyal Camp Mirpur on 5.10.2009, which was dismissed vide its order dated 15.4.2010. It is the aforesaid order which has been assailed through the instant revision petition.
8. In support of the revision petition, M/s. Sharafat Hussain Shah and Abdus Salam Arif, Advocates, argued that a false case has been registered against the petitioner without any motive. The learned Counsel further contended that it cannot be believed that in odd hours of the night, the deceased-complainant had gone to the house of accused for inquiring about the construction of the house, which casts doubt upon the veracity of the prosecution, story. The learned counsel pointed out that during the course of prosecution evidence no hostility has been proved on the record and the prosecution evidence is vague and self-contradictory, which cannot be relied upon.
9. The learned Counsel agitated that the perusal of remand form dated 2.5.2007 shows that I.O. wanted to recover the weapon of offence; therefore, he submitted for grant of the remand but the recovery memo. shows that the weapon of offence was recovered from the accused on 1.5.2007, the day of arrest of the accused; therefore, the recovery of weapon of offence is fictitious which cannot be relied upon. The learned counsel pressed into service the submission that according to Barkat Hussain Shah (P.W. 4), the construction of the house had started but according to F.I.R., the accused did not start any construction work. The learned Counsel pointed out that Dr. Anjum Shahzad (P.W.9) has also not supported the post-mortem report; therefore, the medical evidence does not corroborate the prosecution version. The learned Counsel finally submitted that the prosecution case is full of glaring contradictions and doubts; therefore, the benefit of doubt may be given to the accused and he may be released on bail, who is behind the bars for the last four years but the trial Court failed to appraise the prosecution evidence in a legal fashion and exercised its discretion in an arbitrary manner. In support of his contentions, the learned Counsel cited the following authorities:--
1. 1986 P.Cr.LJ 120;
2. 1990 P.Cr.LJ 1035; &
3. 1994 P.Cr.LJ 739; Abdul Wahid Aamir, the learned Counsel for the complainant controverted the arguments raised by the learned Counsel for the petitioner and submitted that the F.I.R was promptly lodged, the accused is nominated therein and a clear role of firing shots with a deadly weapon has been ascribed to him. The learned Counsel further argued that the dying declaration was recorded after obtaining opinion from Medical Officer, which clearly implicates the accused with the offence of murder. The learned Counsel pointed out that eye-witnesses have fully supported the prosecution story; therefore, no question of identification is required and sufficient corroboratory evidence like recovery of weapon of offence, blood-stained clay, two empties and bloodstained clothing of the deceased connects the accused with the commission of offence. The learned Counsel maintained that the medical evidence fully supports the prosecution version and Dr. Anjum Shahzad has categorically supported the post-mortem report; therefore, impugned decision does not require any indulgence by this Court. The learned Counsel defended the impugned order on all counts.
10. Javaid Sadiq Jarral, the learned Asst.A.G representing the State opposed the bail petition and supported the arguments raised by the learned Counsel for the complainant.
11. I have carefully considered the arguments advanced by the learned Counsel for the parties alongwith the facts of the case and the authorities cited at the Bar. It transpires from the cursory perusal of the record that F.I.R in the instant case was promptly lodged in the light of statement of the deceased-complainant. The statement of the complainant Exh.PN was recorded after obtaining certificate of fitness from Doctor Liaquat (P.W.10) and a clear role of firing two shots with .30-bore pistol has been ascribed to the accused-petitioner, which also prima-facie, finds ample support from the statements of eye-witnesses, recorded by the trial Court. The prosecution witnesses have also, prima-facie, supported the factum of recovery which shows that a .30-bore pistol, he weapon of offence, was taken into possession on the pointation of accused on 1.5.2007.
12. Similarly, the recovery of blood-stained clay, two empties of 30-bore pistol, blood-stained clothing of the deceased, injury form, post-mortem report and the report of chemical examiner prima- facie, further corroborate the prosecution version.
13. I don't subscribe to the view of the learned Counsel for the accused-petitioner that motive has not been proved on the record because the motive, the dispute of construction of the house, has been categorically alleged in the FIR and also prima-facie supported by the eye-witnesses and other relevant P.Ws. Similarly, I don't find any glaring defect or serious contradiction in the statement of Dr. Anjum Shahzad (P.W.9), which could create any doubt in the prosecution story for releasing the accused-petitioner on bail.
14. As far as the case law cited by the learned Counsel for the accused-petitioner is concerned, is quite distinguishable from the facts of the instant case; therefore, cannot loosely be applied. For instance, Ghulam Rasool & another's case (1986 P.Cr.L.J 120) deals with a case where the medical evidence was inconsistent with the ocular version whereby a Medical Board failed to give cause of death because the dead body was examined after six months and was highly decomposed.
15. Similarly, in Bashir Ahmad's case (1990 P.Cr.L.J 1035 Lahore) two Investigating Officers found accused innocent while other two found him guilty on the same material. The aforesaid situation was resolved in favour of accused, whose bail was not cancelled by the High Court.
16. Rafaqat Ali's case (1994 P.Cr.L.J 379) deals with the case of circumstantial evidence whereby the circumstantial evidence was collected days after the occurrence and the P.Ws before whom the accused confessed his guilt were not produced before the I.0; therefore, bail petition of the accused was allowed.
17. In the instant case neither any I.O. found the accused innocent nor any inconsistency has been found in ocular version and medical evidence and neither it is a case of circumstantial evidence, rather the prosecution story is supported by dying declaration of the deceased. The ocular version prima-facie, also finds support from medical and sufficient corroboratory and confirmatory evidence. The trial Court has recorded the evidence of (10) P.Ws, which transpires the reasonable grounds and tangible evidence against the accused to connect him with the Commission of alleged offence; therefore, the Court below has exercised its discretion with due care and caution keeping in view the peculiar facts and circumstances of the case. Thus, it does not require any interference by this Court.
18. For the reasons listed above, finding no force in this revision petition, it is hereby dismissed and the concession of bail cannot be allowed to the accused-petitioner.