ATTAULLAH KHAN J.---Raj Muhammad Khan, accused/ petitioner, has filed this application under section 497, Cr.P.C. For his release on bail in case F.I.R. No.157 dated 30-4-2011 of Police Station Nawagai, registered under sections 302/324/34, P.P.C.
2. According to the F.I.R. Lodged by the complainant Mir Zada in injured condition in the Emergency Ward of Civil Hospital Daggar, the prosecution story is to the effect that on the fateful day he had gone for labour to Ammad Marbal Industry and at the noon-time while returning to his home in the company of Inayatullah when reach to the place of occurrence, the accused, namely, Sher Muhammad, Zahir Muhammad and Raj Muhammad, the present accused/petitioner, were waiting, and on seeing them opened fire which hit the complainant on his back having three injuries. The motive as given in the F.I.R. Is previous blood feud.
3. It is to be noted that the F.I.R. Is the result of dying declaration.
4. Learned counsel for the petitioner argued that it is a case of further inquiry because in the F.I.R.
Against the accused under section 13 Arms Ordinance bearing No.112 was registered by Police Station Chingley on 30-4-2011 at 1130 hours, while the present F.I.R. Bearing No.157 has been registered on the same day at 1200 hours. According to the learned counsel, both the places of occurrence are different with different police stations and thus the petitioner was not present on the spot at the time of occurrence. Thus indirectly, he has taken the plea of alibi. He also submitted that it is a case of qatl-bissabab as defined under section 321, P.P.C. And the accused/petitioner would be liable to be convicted for Diyat only and not under section 302, P.P.C. He further submitted that there is no ocular evidence against the accused/petitioner involving him in the offence and, therefore, he is entitled to bail as a matter of right. In this connection, he relied upon 2009 SCM R 1210.
5. The learned counsel also relied upon an unreported judgment of this Court in Criminal Miscellaneous 366 of 2010 decided by honourable Chief Justice of this Court on .10-1-2011.
6. On the contrary, learned counsel for the complainant submitted that the nomination of the accused/petitioner is in the shape of dying declaration which was recorded by the police in the emergency room of District Headquarters Hospital Daggar in injured condition. According to the learned counsel, the petitioner/accused has failed to prove any mala fide for his false implication in the offence. He further submitted that Inayatullah P.W. And others have recorded statements under section 164, Cr.P.C. Wherein they have fully charged the accused/petitioner for committing the crime.
7. The learned Additional Advocate-General representing the State supported the arguments of the learned counsel for the complainant.
8. I have carefully gone through the record and considered the arguments of the learned counsel for the parties.
9. I would first take the plea of the learned counsel for the petitioner regarding the nature of the offence. According to the learned counsel, the case is to fall under section 322, P.P.C. As it is qatl- bissabab as defined under section 321, P.P.C.
10. Before commenting upon the nature of offence, I would like to reproduce the provisions of sections 321 and 322, P.P.C. Which read as follows:- SECTION 321, P.P.C. QATL-BIS-SABAB---Whoever, without any intention, to cause death of, or cause harm to, any person, does any unlawful act
(a) The accused party had previous enmity' with the complainant party. which becomes a cause for death of another person, is said to commit qatl-bis-sabab.
SECTION 322, P.P.C. PUNISHMENT FOR QATL-BIS-SABAB-Whoever commits shall be liable to diyat".
11. It is to be seen, though not required for the purposes of bail, but for the sake of arguments, as to whether the accused/petitioner has committed qatl-bis-sabab or qatl-e-amd, as defined under section 302, P.P.C.
12. This issue may be examined in the light of contents of the F.I.R.
13. The F.I.R. Was lodged in the Casualty Ward of District Headquarters Hospital Daggar on the report of the deceased then-injured. He informed the police that on way to his house in the company of Inayatullah when reached to the place of occurrence, the accused party including the accused/petitioner waiting there, opened firing at them with which he was hit and got injured. The contents of report does not reveal that the offence is without any intention. The complainant party was fired at by the accused party including the petitioner with intention to cause death.
14. In this case, the determining factors would be the weapons of offence used in the crime and seat of injury coupled with intention.
15. Qatl-e-amd is a premeditated murder, while qatl-bis-sabab is murder without intention.
16. If an accused having no intention to cause death, it would attract the provisions of section 321, P.P.C. For the offence of qatl-bis-sabab, but if there is an intention and preparation, then it would certainly amount to qatl-e-amd.
17. As stated above, in the F.I.R. It is clearly indicated that the accused/party was duly armed with fire-arms and they were also waiting for the complainant party on the spot. The accused party had also previous blood-feud enmity with one Inayatullah who was accompanying the deceased at the relevant time and who is also an eyewitness in the case.
18. So in this case, the determining factors were available which are enumerated below:--
(b) The accused had intention to cause death.
(c) They were fully prepared and the murder of the deceased was premeditated and,
(d) The -accused were armed with deadly weapons with which they effected fire at the complainant party.
19. So keeping in view the above determining factors, for all practical purposes, the murder is qatl- e-amd and would not be covered under section 321, P.P.C.
20. So, this argument, at this stage, is of no avail to the petitioner.
21. Next is the plea of alibi which is based on the registration of case F.I.R. No. 112 dated 30-4-2011 registered under section 13 Arms Ordinance by Police Station Changlai. According to the learned counsel, a pistol was recovered from the possession of the accused/petitioner, while the occurrence under section 302, P.P.C. Was registered by Police Station Nawagai on the same day at 1200 hours. So, according to the learned counsel, the petitioner was not present at the time of occurrence, but was in police custody.
22. Here, I may point out that most of the criminals adopts such like devices in heinous offences. In the prevailing circumstances, it is not difficult for an accused to show himself involved in a soft occurrence like section 13 Arms Ordinance in order to avoid the consequences of heinous offences for the commission of which he is charged. If we accept this plea of alibi, then what would be the fate of dying declaration of the deceased, direct nomination of the petitioner and ocular evidence.
So, this plea of alibi may be thrashed out at the stage of trial and not now.
23. The next argument of the learned counsel for the petitioner is the absence of connecting evidence, which is not believable because it is not the case in which ocular evidence is lacking. The reason is that the companion of the deceased, namely, Inayatullah, was present on the spot at the time of occurrence and saw the accused while injuring him. His statement under section 164, Cr.P.C.
Was recorded in which he has fully involved the petitioner. Some others have also charged the accused/petitioner for the offence.
24. Above all, the F.I.R. Is very important because it is dying declaration. After getting the injuries, the deceased was shifted to the District Headquarters Hospital Daggar where his report was recorded by the police. It is settled principle of law that a victim of murder would not falsely implicate an innocent person because he is expecting an immediate death. The deceased-then-injured also thumb pressed the report and after some time he succumbed to the injuries. All this episode reveals that the deceasd then-injured was under the imminent danger of death and so his dying declaration cannot be disbelieved unless something is brought in rebuttal at the trial stage.
25. The dying declaration is further corroborated by the ocular evidence.
26. The learned counsel for the petitioner relied upon 2009 SCM R 1210.
27. I have perused the said judgment. The facts of the present case are totally different from the facts of the reported case, because in that case the accused was not named in the F.I.R. But was later on nominated in the supplementary statement, while in the case in hand, the accused/petitioner is directly charged and that too by the deceased then-injured in his dying declaration. So the principles laid down therein would be of no avail to the present petitioner.
28. So far as the facts of the unreported case of this Court mentioned above are concerned, again the same are different from the facts of the case in hand, because in that case the accused/petitioner was not charged in the F.I.R. But was implicated because of secret information.
So no benefit could be extended to the present petitioner on the basis of the said judgment.
29. The medical evidence also supports the guilt of the accused/petitioner at present, because three injuries were found on the body of the deceased then-injured. So keeping in view the number of injuries, it is not a case of single accused, but is the result of participation of several accused.
30. In this case, incidentally three accused are charged and three wounds were found on the body of the deceased which are corroborative to each other.
31. In short, the accused/petitioner is directly charged by the deceased-then-injured in his dying declaration for wilfully causing injuries to him which resulted into his death subsequently. So is the ocular evidence against the accused/petitioner connecting him with the murder of the deceased and thus the medical evidence corroborates the ocular evidence and, therefore, there is ample evidence so far brought on record which reasonably connect him with the commission of the offence disentitling him to the concession of bail.
32. Consequently, I find no merit in this bail application which is accordingly dismissed. However, keeping in view the case law reported as 1996 SCM R 1894, the observations made in this order are tentative in nature and shall not prejudice the mind of the trial Court in any manner ID at the time of trial. 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.