MUHAMMAD DAUD KHAN, J.- Accused/ petitioner, Habibullah, involved in case F.I.R No. 68, dated 04.02.2014, under sections 302/34 PPC of Police Station, Lakki Marwat, was refused bail by the learned Additional Sessions Judge-I, Lakki Marwat, vide its order dated 22.08.2014. He has moved this further application through his counsel for the same relief.
2. Brief facts of the case as per F.I.R, referred to above, are that on 04.02.2014 complainant along with his brother Khan Zaman and cousin Abdur Rehman proceeded towards Masti Khel for watching the contest of bow and arrow. Khan Zaman was participating in the contest, whereas the complainant and his cousin Abdur Rehman were watching the contest, meanwhile at about 11.00 hours, accused/ petitioner Habibullah armed with Kalashnikov and co-accused Aslam armed with 30 bore pistol and Ikram armed with Kalashnikov appeared. Accused Aslam Khan opened a single fire at his brother Khan Zaman, due to which he was hit and after covering some distance fell on the ground. All the three accused reached near to him and started firing at him, as a result of which he sustained injuries and died at the spot. Accused after commission of the offence left the spot. As per FIR motive behind the occurrence is previous blood feud enmity and the occurrence has been witnessed apart from the complainant by his cousin Abdur Rehman.
3. I have heard the arguments of learned counsel for the parties, Addl: A.G for the state and have gone through the record with their valuable assistance.
4. Perusal of record reveals that the occurrence took place on 04.02.2014at 11.00 hours whereas the report has been lodged on the same day at 1415 hours. Shadi Khan is the complainant of the case who has directly charged the accused/petitioner along with co-accused for commission of the offence. It is a day light occurrence, whereas the parties are already known to each other, hence, there is no question of misidentification. The I.O during spot inspection recovered two empties of 30 bore from the place of presence of co-accused Aslam Khan, whereas from the place of deceased two spent bullets of 7.62 bore were recovered, which fact further supports the prosecution version.
Post mortem report and blood stained garments of deceased having cut marks further supplement the case. When all these material pieces of evidence taken in juxtaposition a reasonable ground do exist, which connect the accused/ petitioner with the commission of offence, falling under the prohibitory clause of section 497 Cr.PC. Reliance may be placed on case titled "Muhammad Rafique Vs the State", 2008 SCM R 678.
5. The accused also remained absconder since the date of occurrence till his arrest for a period of more four and a half months, but he has failed to offer any explanation much less plausible for his abscondence. The fugitive from law loses some of his substantive as well as procedural rights and on this ground alone his bail can be refused, irrespective of the other merits of the case. Reliance in this respect may be placed on case titled "Sulaman Bahadur Vs State and another" 2010 PCr.LJ 1780 (Peshawar)
6. It appears from the record that challan has already been put in Court of Judicial Magistrate-VI, Lakki Marwart and after taking cognizance, it has been submitted before the court of learned Sessions Judge, Lakki Marwat on 02.09.2014 but in the meanwhile, case file was requisitioned by this Court in connection with the instant petition. Much has been argued before me from either side, but discussion on all these points would amount to deeper appreciation of evidence which has always been deprecated by the Hon'ble Superior Courts at bail stage, particularly, at a stage when trial has commenced or is likely to commence in the near future, because any expression on merits at such stage, would cause prejudice to either party, at trial stage and this principle has been firmly and clearly laid down by the apex Court in Muhammad Ismail's case (PLD 1989 SC 585).
7. So far as the contention of learned counsel for the petitioner that at the time of occurrence, he was on duty and in this respect he produced letter issued from his department by taking the plea of alibi. Perusal of the record reveals that the accused/petitioner Habibullah is serving as junior clerk in 62 Wing Panjgur Rifles and was on leave with effect from 12.01.2014 to 31.01.2014. The I.O collected his telephone number from the department but they have given a number of mobile cell No.03158850258, alleging therein to be the number of his brother. But as per report of I.O the same is registered in the name of accused/petitioner. The data of the said number as collected by the I.O, placed on record reveals that from 01.02.2014 to 05.02.2014 at 15.02 hours, its location was at District Lakki Marwat. On 05.02.2014 at 15.04 hours to 20.15 hours he was at D.I.Khan. On 06.02.2014 its location was at Zhob and on the same day its location changes to Qilla Saifullah, Pashin, Quetta, Chaghi, Noshki, and lastly on 02.07.2014 he was shown at Dalbadin, which is his place of his duty.
This exercise shows that there was a person who travelled from Lakki to Dalbadin. The peculiar facts and circumstances of the case do not justify the plea of alibi, therefore, the accused/petitioner could not stand behind the certificates and letters issued by the department in his favour. The plea of alibi at this stage cannot be believed and it could only be thrashed out during the trial.
8. In view of this factual position petitioner is not entitled for concession of bail. Thus instant bail application is dismissed.
However, learned trial court is directed to conclude the trial within a period of four months, if not earlier than that. This order being tentative in nature would not effect the merits of the case.