SYED AFSAR SHAH J.-Involved in case FIR No.46 dated 23-3-2014 under sections 302/34 PPC of police station Shaheed Nawab Khan Paharpur, accused/petitioner Abdul Latif applied for his post arrest bail to the court of Judicial Magistrate Paharpur, but with no premium to him as his petition was dismissed vide order dated 3-7-2014, whereafter, he took the matter to the court of learned Additional Sessions Judge Paharpur, but there he also met the same fate as his petition for the grant of bail was dismissed by the learned Additional Sessions Judge vide his order dated 11/7/2014 and now he has come to this court for his release on bail.
2. The prosecution story as given in the FIR briefly stated is that on 29/3/2013 at about 1730 hours Ameer Shah, the complainant, made a report to Parvez Shah, SHO of police station Saheed Nawab Khan Paharpur to the effect that on the day of occurrence at "Degar Vela" he was present in his house when informed by one Muhammad Arif through telephone that his son Syed Farooq Ali Shah has been fired at in the vegetable market of Panyala andhas been seriously injured, that he immediately rushed to there where his son had already succumbed to the injuries. On the spot, his (complainant)nephew Altaf Hussain Shah and one Muhammad Arif, were present and they narrated the story to him, that they alongwith the deceased after watching the Volley Ball match were on their way back and when reached to the Vegetable Mandi of Panyala, it was 1700 hours when in the meanwhile accused Abdul Latif , Abdul Hameed, duly armed with pistols and Muhammad Shuaib came on a motorbike, that accused Abdul Latif and Abdul Hameed started firing at the deceased Syed Farooq Ali Shah with their pistols, due to which he was hit and lateron succumbed to the injuries. As per version of the complainant, the occurrence has been witnessed by PWs Altaf Hussain Shah, Muhammad Arif and others present at the spot. Motive behind the offence as stated by the complainant was previous blood feud between the parties. The complainant has charged all the three accused for the murder of his son Syed Farooq Ali Shah.
3. Learned counsel for the petitioner seeks bail mainly on the grounds that no doubt the petitioner has been nominated in the FIR, but no specific injury to any person has been attributed and only a generalized allegation has been leveled against him in the FIR. He further added that at the time of occurrence, the accused/petitioner was at Peshawar and in which respect he made reference to the report/opinion endorsed by the Investigating Officer during re-investigation of the case. He went on to say that no recovery of crime empty has been effected from the venue of occurrence and again in view of the inconsistency between the entries made in the site plan, medical evidence and version given in the FIR, the case of the accused/petitioner is that of further enquiry. In support of his arguments, learned counsel for the petitioner placed reliance on case titled Subeh Sadiq alias Saabo alias Kalu...Vs...The State and others (2011 SCM R 1543) and Ehsanullah...Vs...The State (2012 SCM R 1137).
4. As against that, learned counsel for the complainant assisted by learned Additional Advocate General opposed the petition by submitting that the petitioner is directly charged in a promptly lodged FIR with a specific motive behind the offence which is a previous blood feud between the parties, that sufficient material has been collected by the Investigating Officer during investigation of the case which, prima facie, connect the accused/petitioner with the commission of the crime, that the prosecution version lends support not only from the ocular account furnished by PWs Altaf Hussain Shah and Muhammad Arif, but also from the medical evidence. In support of their submissions, they placed reliance on case titled Ghulam Ahmad Chishti...Vs...The State and another (2013 SCM R 385).
5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have gone through the record of the case.
6. It appears from the record available on file that in this case the occurrence took place on 23-3- 2014 at 1700 hours, whereas the report has been lodged on the same day at 1730 hours, i.e. within thirty minutes of the occurrence, prima facie, discarding the element of consultation and deliberation in nominating the accused. Ameer Shah, father of the deceased, is the complainant of the present case and he has charged accused/petitioner alongwith his co-accused Abdul Hameed for firing at the deceased specifically. The version of the complainant which he narrated in the FIR lends support from the statements of PWs Altaf Hussain Shah, Muhammad Arif and medical evidence.
So far as the precedents cited by learned counsel for the accused/petitioner are concerned, in 2011 SCMR 1543, the accused was neither armed on the occasion of the murder nor he caused any injury to any person and again the Investigating Officer found that accused was merely present at the scene of crime at the relevant time. Similarly, in 2012 SCM R 1137, the Investigating Agency had reached to a definite conclusion that accused was not present even at the scene of crime and had provided behind the scene abatement to his co-accused for commission of alleged offence and he was recommended for trial only in respect of an offence under section 109 PPC.
In the present cse, accused/petitioner has been attributed a direct role of causing injury at the deceased with a specific motive behind the offence which is a previous blood feud between the parties and again the version of the complainant lends support from the statements of the two eye witnesses.
As stated earlier, the main contention of the learned counsel for the petitioner is that at the time of occurrence, accused/petitioner was not present at the spot and that he was at Peshawar. In support of his submissions, he also made reference to the opinion of the Investigating Officers which they had given during re-investigation of the case. Copies of the said report have been provided to the court by the learned Additional Advocate General today during the course of arguments. It appears from the reports/opinion endorsed by the Investigating Officers that none of them have reached to a definite conclusion that at the time of occurrence, accused/petitioner was not present at the venue of crime.
So far as this contention of the learned counsel for the petitioner that the story as stated in the FIR is inconsistent with the medical evidence and entries made in the site plan is concerned, suffice it to say that the same could not be appreciated without deeper appraisal of evidence, which at bail stage is unwarranted.In this respect, wisdom is derived from the case law titled Mumtaz...Vs...The State (2012 SCM R 556), Muhammad Abbasi...Vs...The State and another (2011 SCM R 1606) and Rabnawaz and another...Vs...TheState and another (2005 P.Cr.L.J-13).
In a case titled Ghulam Ahmad Chishti..Vs..The State and another (2013 SCM R 385)supra, it was observed by their Lordships that plea of alibi raised by accused could be considered by the trial court in the light of the evidence led by the prosecution and defence.
Above all, as held by the august Supreme Court in a case titled Haji Rahman Gul..Vs..Imranuddin and another (2009 SCM R 1179)that a ground of further enquiry should be based on a rational conclusion arrived at with reference to the peculiar facts of the case and not mere hypothetical and whimsical statement contrary to the material available on record as in the instant case.
Reliance is also placed on a case titled Syed Maqbool Muhammad..Vs..The State (2005 SCM R 635).
7. In view of the above, the petition for the grant of bail stands dismissed.