' ATTAULLAH KHAN, J.-After failing to get relief from the lower forums below petitioner namely Gul Said son of Noor Said has preferred this petition under section 497(2), Cr.P.C. For his release on bail on the grounds mentioned in the petition. The petitioner is charged under sections 302/324/34, P.P.C. Vide F.I.R. No,255 dated 9-7-2011 Police Station, Mattani, Peshawar.
2. The brief facts are that the complainant was present along with his father Khan Said and mother Mst.Hazra, in front of his Hujra when in the meanwhile Jan Said, Nadar Said, Nazar Said and present accused-petitioner Gul Said were present there with fire arms, opened firing which hit Khan Said, the father of the complainant, who died on the spot while they remained unhurt. The motive given is dispute over the landed property.
3. The learned counsel for the petitioner submitted that at the time of occurrence the accused- petitioner was not present on the spot, According to learned counsel he was present in his Unit on the date and time of occurrence in Rawalpindi Cantonment. He referred to a certificate issued by Commanding Officer on 11-10-2011. The second submission is that it is a case of no evidence, because one of the witnesses is his mother, who is not supposed to be present in Hujra. The complainant himself was also not present, because he is escaped unhurt. His third submission is that there is contradiction in inquest report and post mortem report regarding the number of injuries on the body of the deceased. He relied upon 2003 PCr.LJ 518, PLD 1996 SC 241 and 1997 SCM R 1829.
4. On the other hand the learned counsel for the complainant submitted that in this case there is no likelihood of false implication, because the F.I.R. Has been lodged very promptly i,e, within 45 minutes, which has ruled out deliberation or consultation for false implication. He further submitted that two eye-witnesses have seen the occurrence. Regarding the presence of eye-witnesses, he submitted that the eye-witnesses were present in front of Hujra and not inside the Hujra. According to his last submission, the plea of alibi and contradiction in respect of number of injuries cannot be considered at this stage, because it would amount to deeper appreciation. He referred to this Court Judgment reported in 2010 PCr.LJ 1463, 2010 PCr.LJ 1386, PLD 1974 SC 83 and 2000 M LD 1046.
5. The learned State council also opposed the bail by adopting the arguments of learned counsel for respondent-complainant.
6. I have considered the arguments of learned counsel for the parties and have also gone through the record with their assistance and my findings are as under.
7. The F.I.R. Has been lodged within 45 minutes of the occurrence, which has eliminated the chance of consultation or false implication. The present accused- A petitioner along with his co-accused has been directly nominated for causing the murder of deceased. I have gone through the judgment reported in 1997 SCM R 1829 relied upon by the counsel for petitioner. The said case was for cancellation of bail granted to an accused. The facts of the said case are different because no cancellation of bail is involved in this case. The principles for cancellation of bail and grant are totally different. Coming to the next authority which is reported as 2003 PCr.LJ 518, would submit that the facts of that case are totally different because the role of the petitioner in this case as well as in the reported case is different. For the sake of convenience, I would reproduce the relevant portion of the judgment as below:-- "In the present case, undoubtedly-the petitioner has been nominated as one of the accused persons in the F.I.R. But the fact cannot be lost sight of that the effective role of firing leading to the murder of Mst.Nishat Parveen and her daughter Mst.Tahira Asad, has been assigned to principal accused Liaq Shah and Chulam Rehman. The precise allegation against the petitioner is that he along with others duly armed, had encircled the house of the complainant possibly in order to foil their attempt to resist possession of land. The petitioner is accused of vicarious liability.
' The above para reveals that in that case the accused was not charged for any overt act but for vicarious liability, as the main role was assigned to the principal accused. The allegation against the accused was that he was present on the spot along with firearm and encircled the house of the complainant.
8. In the case in hand, the role of the accused is different and he has been nominated for firing which resulted in the murder of the deceased. So the principle laid down in the said authority would not attract to the facts of the present case.
9. Similar is the case reported in PLD 1996 SC 241. In the reported case the accused was charged for abetment and no direct role was attributed to him. Relevant portion of the judgment is reproduced below for the sake of ready reference:-- "There can be no two opinions that the case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/ instigation/ conspiracy/ lema; needless to say when parties are Inimically dispressed, the possibility of false implication of opponent is very much there. So, we are of the view that where post arrest bail is granted in such cases, then it should not be cancelled as a matter of course or in routine. Once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same."
' In my opinion, the case-law relied upon by learned counsel for the petitioner is of no avail to him.
10. As stated above, the accused-petitioner is directly charged. The plea of alibi and contradiction in medical evidence cannot be considered at bail stage, as it would amount to deeper appreciation, which is against practice. I would rely upon Judgment of this Court reported in 2010 PCr.LJ 1463 wherein it is held: "As far as the submissions of the learned counsel for the petitioner are concerned, it relates to the trial and deeply touch the merits of the case which cannot be taken into consideration at this bail stage, because it would amount to deep appreciation of evidence which is not permissible under the law at present. For example, the plea of alibi if commented upon at this stage would definitely affect the mind of the trial court which is unwarranted, because unless and until evidence is recorded, no decision can be taken about the absence or presence of the accused on the spot at the time of occurrence. Similar is the case with regard to the alleged contradiction in the medical and other evidence."
11. Similar view has been taken in case decided by this Court and reported in 2010 PCr.LJ 1386 wherein it is held that:- "Admittedly, the accused-petitioner along with other co-accused is directly charged by the complainant for effectively firing at the complainant party with which the two deceased were hit and died on the spot. The charge is duly supported by medical evidence and ocular account. The offence falls within the prohibitory clause of section 497, Cr.P.C, and the alleged plea of alibi about the .Non-availability of the accused-petitioner at the spot at the relevant time will be thrashed out by the trial Court after recording complete evidence."
12. I may also rely upon PLD 1974 SC 83, wherein it is held:-- "In the light of the material available on the record we are of the view that the learned Judge in the High Court was clearly in error in recording a finding at this stage as to the credibility of the evidence of alibi."
13. Similar view' has been taken in . 1987 SCM R 788, wherein it is held:-- "There is no denying the fact that the respondent Muhammad Rafique is directly charged in the F.I.R. For having killed Muhammad Munir with a rifle shot. The F.I.R. Was promptly lodged within 45 minutes by the petitioner. As respects, the contention that the Investigating Officer had found the plea of alibi to be correct, it was contended by the learned counsel for the petitioner that in fact both the respondents have since then been challaned for the commission of the offence.
This fact was not controverted by the learned counsel for the respondent and was confirmed by the learned Assistant Advocate-General. It is needless to comment that the alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence. The respondent Muhammad Naveed is shown to have caused injury to Bashir (P.W.) and the case having been registered under sections 302, 307, read with section 34 Pakistan Penal Code. His case could not be separated for the purpose of grant of bail."
14. In short the accused-petitioner is directly charged in the promptly lodged F.I.R. The incident was reported after 45 minutes of the occurrence, which has eliminated the chance of false implication.
The accused-petitioner is relative of the Complainant party; therefore, question of misidentification does not arise. It is a daylight occurrence. The contradiction in two pieces of evidence which is still to be tested, regarding number of injuries and the plea of alibi are to be thrashed out at the trial stage and not now. It is also to be noted that complete challan has been submitted and the trial is about to commence.
15. In light of my above discussion, the petition in hand is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.