' MRS. IRSHAD QAISER, J.---Having been denied the concession of bail by the learned Lower Forum in case F.I.R. No.445 dated 18-10-2013 under sections 302/324/34, P.P.C. Read with section 13, A.O. Police Station Khanpur District Haripur, the petitioner Muhammad Fiaz has now approached this Court for the same relief.
2. The brief facts of the case as incorporated in the murasila are that complainant Muhammad Afzal brought the dead body of his sister in law Mst. Kausar Bibi in emergency Ward DHQ Hospital Haripur on 18-10-2013 at 11-00 a.m. And reported the matter to the police to the effect that on the day of occurrence at about 8-45 a.m., he was sowing his field with tractor while his sister in law Mst.
Kausar Bibi was also present there. In the meanwhile, Abdul Sattar, Abdul Ghaffar, Muhammad Riaz and Muhammad Fiaz, duly armed with fire arm weapons, came there. Abdul Ghaffar abused the complainant and Mst. Kausar Bibi and then directed his son Abdul Sattar and grandsons Muhammad Riaz and Muhammad Fiaz to kill them, on which they started firing. As a result of firing of accused Muhammad Fiaz, Mst. Kausar Bibi was got hit and sustained injuries, while accused Abdus Sattar and Riaz fired at complainant Muhammad Afzal, who rescued himself by lying on the ground. Thereafter, all the four accused decamped from the spot. Mst. Kausar Bibi was shifted to DHQ Hospital in injured condition, but she succumbed to the injuries on the way. The occurrence was reported to have been witnessed by Muhammad Fiaz son of Muhammad Banaras and Muhammad Waheed son of Muhammad Ashraf, who were working in the adjacent fields. Motive for the offence is given as property disputed.
3. Learned counsel for the petitioner argued that accused is innocent and has falsely been charged in a false case. That there is neither any ocular account nor any circumstantial evidence to connect accused with the crime. That complainant has thrown the net wide by implicating all the family members of petitioner which shows the mala fide of the complainant. That co-accused charged in the F.I.R. Have already been released on bail. Therefore, on the principle of consistency he is also entitled to bail. That he had fired at the deceased on the direction and under the instruction of his grandfather. That it is a case of two version as cross case vide F.I.R. No.480 dated 26-11-2013 under section 337A(ii)/34, P.P.C. Police Station Khanpur has also been registered against the complainant and it can only be determined at the stage of trial that who is aggressor and who has been aggressed upon. That in cross case complainant has also been released on bail.
4. These arguments were rebutted by learned counsel for complainant assisted by State Counsel and contended that accused is directly charged in the promptly lodged F.I.R. For effective firing at the deceased. As a result of which she was hit and died. That two empties were recovered from the spot, weapon of offence recovered from accused along with empties were sent to expert, the report of expert is in positive. That the cross F.I.R. Is nothing but a counterblast to the present F.I.R.
The Medico-legal Report of cross case also contradicts the story of petitioner. That other accused have been released on bail but he is not entitled to be released on the principle of consistency as he is charged for effective firing. That trial Court has already taken the cognizance, therefore, he is not entitled to the concession of bail.
5. I have gone through the record and considered the submission made by the learned counsel for the parties.
6. Perusal of record reveals that accused/petitioner is directly charged in the promptly lodged F.I.R.
For the murder of Mst. Kausar Bibi. At present there is sufficient ocular account which prima facie connects the petitioner with the crime fall within the prohibitory clause. Ocular account is supported by the medical evidence, recoveries, site plan and motive over disputed property. After the arrest of accused on his pointation weapon of offence was recovered which was sent to FSL along with the empties recovered from the spot, the report of which is in positive. Since effective role has been assigned to him, therefore, he is not entitled to bail on the principle of consistency.
Trial has already been commenced before the trial Court.
7. It is settled law that at bail stage, the Court has to take a tentative account or for that matter a bird's eye view of the available record which prima facie connects the accused/petitioner with the crime, entailing capital punishment. As far as the cross version pleaded by accused is concerned, the Courts are not bound to consider every cross case to be a fit case for further inquiry and to grant bail to the accused, given the fact that only tentative assessment is permissible at bail stage.
Reference is made to 1992 SCM R 501, PLD 1990 SC 83 and 2005IB SCMR 1402.
8. For the reasons mentioned above, the instant bail petition being without substance is hereby dismissed. Any observation made in the order being tentative in nature shall in no way prejudice the proceeding before the trial Court.