' QALANDAR ALI KHAN, J.---This Bail Petition (Cr. Misc. No.84-A of 2015) by Shabbir Hussain, petitioner, and Bail Cancellation Application (BCA) (Cr. Misc. No.682-A of 2014), arise out of the same FIR No.96 dated 11.03.2014 under section 302/34, P.P.C. And under Section 15 KPK Arms Ordinance, Police Station Saddar Haripur, therefore, this single order shall also dispose of the connected BCA.
2. The FIR was lodged on the, report of Mian Gul, complainant, who reported to the police in the Hospital that while he was present in the `baithak' of Rustam, with other persons, namely, Muhammad Fiaz and Masood, he was informed by Shakeel Ahmed son of Ghayoor Khan about a person lying in injured condition on a path, whereupon he rushed to the spot along with the said persons and recognized his son, Nisar Ahmed, lying there in injured condition, and a revolver .32 bore also lying besides him, which was handed over to him by Muhammad Rafique, who also reached there. The injured, Nisar Ahmed, succumbed to the injuries while on his way to the Hospital.
The complainant further stated that his son was present in the house when he was leaving for the taithak', and that he was unaware of the motive; and, therefore, did not charge any one for the murder.
3. The accused-petitioner, Shabbir Hussain, was charged after four days of the occurrence on 15.03.2014 in statement under section 164, Cr.P.C. Of the complainant, wherein, he charged the accused-petitioner for the murder because his wife and elder son, Waqas Ahmed, had disclosed to him a dispute between the deceased and the accused-petitioner over a transaction relating to narcotics, due to which the accused-petitioner had, allegedly, threatened his deceased son with dire consequences. Likewise, accused/respondent No.1, Muhammad Asif, was charged by the complainant in his subsequent statement, recorded on 18.06.2014, for the murder of his son for the same of dispute over narcotics dealing.
4. The postmortem examination of the deceased revealed three multiple small injuries of 1 m.m.
Size on skull, neck and chest. During spot inspection the Investigating Officer recovered three empties of .12 bore from the places assigned to the accused-petitioner in the site plan, later, on his own pointation after his arrest. The accused-petitioner was arrested on 16.03.2014 and a single barrel rifle .12 bore was recovered from his house, on his pointation on 18.03.2014. The recovered rifle and the crime empties were sent to the Forensic Science Laboratory and report of the Fire Arms expert was received in the affirmative, showing the crime empties having been fired from the - recovered rifle. Initially, the accused-respondent in BCA went into hiding and, therefore, proceedings under sections 204 and 87, Cr.P.C. Were initiated against him, but after bail before arrest was confirmed in his favour, supplementary challan was submitted against him, along with complete challan in the case against the accused-petitioner.
5. It may be added here that on the application of Fazal Hussain, father of the accused-petitioner, the case was re-examined/reinvestigated, but conclusion of the investigation agency remained the same and the accused-petitioner as well as accused-respondent in BCA were sent up for trial.
6. In the meantime, the trial has commenced against both the accused-petitioner and accused- respondent in BCA and after framing of charge, a prosecution witness i.e. PW-1 has also been examined in the trial Court.
7. The learned counsel for the accused-petitioner argued that this was an unseen occurrence, and that the accused-petitioner was charged in the supplementary statement of the complainant after four days of the occurrence despite disclosure to him of the motive for the offence i.e. Dispute between the accused-petitioner and deceased over a transaction relating to narcotics. Therefore consultation and deliberation before charging the accused-petitioner could not be ruled out. The learned counsel further argued that recovery of revolver lying besides the body of the deceased, then injured, would suggest self inflicting of firearm injury by the deceased, especially when a black spot was found by the Medical Officer on the third injury of the deceased. The learned counsel further pointed out that the recovery of rifle .12 bore and positive report of the Fire Arms expert would also become doubtful when seen in the light of the fact that marginal witnesses to the recovery memo in respect of the rifle not only signed their statements under section 161, Cr.P.C. But were also subjected to cross-examination by the Investigating Officer, which was a procedure adopted by the Investigating Officer in contravention of the relevant provisions of Code of Criminal Procedure; and would, thus, tend to vitiate investigation in the case. In support of his contentions, the learned counsel for the accused-petitioner referred to judgments in cases reported as "Noor Muhammad v. The State" (2008 SCMR 1556), "Qamar alias Mitho v. The State and others" (PLD 2012 Supreme Court 222), "Mehboob v. Sajjad Ahmad another" (PLD 2008 Peshawar 69), "Abdul Aziz Khan Niazi v. State through Chairman NAB, Islamabad" (PLD 2003 SC 668), "Muhammad Saleem v. The State and another" (2003 MLD 145 Peshawar), "Safdar Ali v. The State" (2008. PCr.LJ 129 Lahore), "Dildar Bakhsh v. State etc." (PL 2010 Cr. C. (Lahore) 507), "Mureed and another v. The State" (2010 YLR 2671 Karachi), "Muhammad Ali v. The State" (2008 PCr.LJ 87), "Yousaf Masih v.
The State (2010 PCr.LJ 392 Karachi) and "Qurban Al! Alias Fouji v. The State" (2007 PCr.LJ 647 Karachi).
8. In addition to the arguments of learned counsel for the accused-petitioner, the learned counsel for accused-respondent in BCA contended that accused-respondent was abroad during the days of occurrence, as he had left the country on 02.03.2014 and returned back on 12.07.2014.
9. The learned Assistant Advocate General assisted by learned counsel for the complainant, on the other hand, argued that both the accused-petitioner and accused-respondent in BCA were specifically charged for the `Qatl-e-Amd' owing to a motive attributed to both the accused in the supplementary statements i.e. Dispute over money transaction relating to dealing in narcotics.
They also pointed out that besides the statement of complainant, his wife and son, Waqas Ahmed, statement of real brother of the accused-petitioner, Abdul Qadeer, and another relative, namely, Habib-ur-Rehman, would further confirm, at least, motive for the offence, and pre and post conduct of the accused petitioner as well as persons related to him.
10. It may be relevant to point out at the outset that every criminal case has its own peculiar circumstances, which are to be invariably taken into consideration while dealing with the case.
Therefore, the assertion that non-charging of the accused in the FIR and charging him with some delay would render the case that of further inquiry would not be of universal application in each and every case. As would be seen in this case, the complainant, had apparently, narrated true facts in his promptly lodged FIR and did not charge any one on mere suspicion, because he was not present on the spot at the time of occurrence. He charged the accused-petitioner only after getting knowledge of the motive from his wife and son and, according to the petitioner, only after making himself sure about involvement of the accused-petitioner in the commission of the offence. This fact would, indeed, strengthen the arguments of the prosecution that had there been any motive on the part of the complainant to falsely implicate the accused-petitioner, the latter would have been charged in the FIR. The circumstantial evidence, like recoveries of three empties from the spot and positive report of Fire Arms expert regarding their matching with .12 bore rifle recovered from the house of the accused-petitioner on his pointation Auld, prima facie, substantiate the charge of the complainant against the accused-petitioner. The contention of the learned counsel for the accused-petitioner that the fire arm injuries could be self inflicted in view of recovery of revolver lying besides the body of deceased, then injured, does not find support from the record available at this stage, as the postmortem report shows multiple small injuries indicating use of shotgun/12.bore rifle in the commission of offence. The presence of black spot on injury No.3 in the postmortem report is yet to be explained by the Medical Officer, in the absence of description of the same as 'charring marks' caused by firearm from a close distance.
11. At the moment, the above stated evidence collected by the investigating agency, coupled with the motive even supported by the brother and close relative of the accused-petitioner in their statements under section 161, Cr.P.C. Go a long way to prima facie connect the accused-petitioner with the offence.
12. Above all, trial against the accused-petitioner has commenced and even one PW has been examined, therefore, discussion and findings on merits of the case would not be desirable, lest that may prejudice case of either of the parties.
13. However, case of the accused-respondent in BCA is quite distinguishable in that the accused- respondent was charged by the complainant in his subsequent supplementary statement under section 164, Cr.P.C., recorded after more than three months of the occurrence, despite disclosure of the same motive, which had earlier been disclosed to the complainant by his wife and son. Besides, there has been no recovery from the accused-respondent; and he also placed on record documents from the relevant quarter showing him out of country during the days of occurrence.
Therefore, the order of learned Additional Sessions Judge-III, Haripur, dated 20.11.2014, confirming the ad-interim pre-arrest bail of the accused-respondent, is based on proper appreciation of facts and circumstances surrounding his case and does not call for cancellation/reversal.
14. In view of the above, both the application for bail by the accused-petitioner and the other application for cancellation of bail of the D accused-respondent are dismissed.