MALIK HAQ NAWAZ, J.---The petitioner along with his real brother namely Ishaque Alam were booked for the offences under sections 302/34/109/458, P.P.C. vide FIR No.06/2016 dated 29.2.2016 registered at Police Station Singul.
2. The precise story of the occurrence as stated in the FIR is that complainant Khush Khan son of Murad Khan on 29.2.2016 at about 04:20 pm received a telephone call from his brother Abdullah that his nephew has been murdered by the accused Ishaq Alam and Farhad Alam sons of Muhammad Alam, resident of Hamuchal. On receipt of this information the complainant rushed to his house, there was a fuss all over and people were bewailing and dead body of deceased Umar was lying in a Bethak. On inquiry the complainant was informed by PW Riaz son of Nadir Aman, Sadam son of Abdullah and Abdur Rahman son of Saffiullah that it was about 04:00 pm, when the above named accused entered into the bethak of the deceased and opened indiscriminate firing on the deceased. When the above PWs tried to intervene, they were threatened to kill. After commission of offence the accused decamped from the place of occurrence on a motor bike towards Sher Qilla. The motive was that accused party was suspecting extra marital relations between the deceased and Mst. Guddi, wife of accused Farhad Alam. On the fateful day prior to the occurrence the deceased was called in the house of Raja Fakher-e-Alam, where deceased took Oath on Holy Quran in disproof of allegation of illicit relation between him and Mst. Guddi. The complainant stated that the murder has been committed on the instigation and abetment of Fakher Alam son of Muhammad Alam, and Brush Khan son of Muzafar Alam.
3.The petitioner and his co-accused were arrested in the instant case and were sent to judicial lockup after completion of investigation.
4.Raja Fakhar Alam and co-accused Brush Khan were allowed bail before arrest by the learned trial Court. The complainant moved bail cancellation application under section 497(5), Cr.P.C., against accused Raja Fakhr Alam, only, which was declined by this Court.
5.The petitioner applied for post arrest bail in trial Court, which was declined vide order dated 30.06.2016. Being dissatisfied from the order of the learned trial Court, the petitioner has approached this Court for the same relief.
6.The learned counsel for the petitioner submitted that though the petitioner has been nominated in the FIR but no over act is attributed to him in the statements of prosecution witnesses which are at variance with the contents of FIR and further that no weapon of offence has been recovered from his possession, which make his case as one of the further inquiry. The involvement and question of sharing common intention with co-accused will be thrashed by the trial Court atter recording of evidence. The learned counsel for the petitioner relied on 2014 PCr.LJ 1548 and 2014 PCr.LJ 1124, where in similar circumstances bail was allowed to the accused. The second limb of arguments of the learned counsel was that no recovery of weapon of offence has been effected from the petitioner, which should be considered a factor favoring the accused/petitioner and reliance was placed on 2015 M LD 263. The learned counsel for the petitioner stated that the case of the petitioner is one of further inquiry and the concession of bail should be extended to him.
7.The learned Dy.A.G, when confronted to meet the arguments raised at bar by the learned defense counsel, he vehemently contended that the petitioner is directly charged in promptly lodged FIR, with specific allegation of opening indiscriminate firing on the deceased, with his co-accused, Almost all the PWs are in complete unison that both the accused went to the place of occurrence with a pre-plan were united in common intention attracting the provisions of section 34, P.P.C. The learned Dy.A.G. further stated that the brutality displayed by the petitioner does not entitle him for the grant of bail, as an innocent person who was at the prime of his age has been done to death without any solid foundation or justified reasons. Per learned Dy.A.G the offence entails the punishment of death/life imprisonment and falls within the prohibitory clause of section 497, Cr.P.C., as such the petitioner is not entitled for concession of bail.
8. Having heard both the learned counsel and after going through the record, it is, evident that the present petitioner is directly charged in the FIR. The plea of the learned counsel that no recovery has been effected from the petitioner and PWs have charged co-accused, Ishaq Alam for opening fatal shots on the deceased, and his presence without any overt act are the questions which prosecution will meet at the trial of the case. It would be far from the scope of section 497, Cr.P.C., to consider and label his case as one of the further inquiry. The petitioner, went on a motorbike along with his real brother and committed the murder of deceased, which was a pre-planned and a cold blooded murder as some time before the occurrence the deceased was called by the accused party in the house of their uncle Fakhr Alam and was thrashed there. Mere fact that no recovery has been effected from the petitioner will not entitle him for concession of bail. In such like cases recovery does not play any decisive role and non recovery of weapon of offence, will not reduce the gravity of offence, if ultimately the charge is proved. Suffice to say that existence of common intention, consists of motive, preconcert and pre-arrangements which cannot be proved directly and it being a state of mind can be inferred from the attending circumstances. As reflected from the statements of PWs and other attending circumstances, the petitioner was present at the place of occurrence who went there after covering a long distance from their house to the house of deceased on a motorbike and fleeing from the place of occurrence is evident from tentative assessm ent of statements of all the PWs. The eyewitnesses attributed him the role of facilitation in commission of offence, which will be sufficient ground to refuse him concession of bail. The wisdom is drawn from a judgment reported in 1988 SCM R 281, which is reproduced as under:-- "Prima facie case of participation in occurrence and facilitating commission of crime... Accused prima facie participated in occurrence and facilitated commission of crime (murder) although he did not inflict any injury to deceased... High Court's order declining to release him on bail, challenged... No point of law raised... No case having been made out for interference in impugned order, leave to appeal was refused."
The arguments of the learned counsel that the petitioner/accused did not cause any injury to the deceased is also without any legal substance as the allegation against him as reflected in the statements df PWs are that he facilitated the commission of murder. Non-recovery of weapon of offence will not advance the case of prosecution as the dictum laid down by the Hon'ble Supreme Court of Pakistan in a judgment reported in PLD 2004 SC 822 (citation "F" at page 829) which is reproduced below.
"As far as non-recovery of incriminating weapons at the behest of petitioner is concerned, it has got no significance at this stage as because after the commission of the offence, immediate arrest of the petitioner could not take place as he was arrested on 31st May, 2003, after about three weeks from the date of incident. Similarly non-recovery of .222 rifle empties, with which allegedly as per the "zimnees", he has fired, cannot be considered important to enlarge him on bail because the trial Court would answer this question after evaluating the evidence."
9. From plain reading of FIR, the statements of PWs, and other attending circumstances, a prima facie case is established against the accused, which dis-entitles him for concession of bail.
10.The result is that bail petition is declined being meritless.