ABDUL HAMEED BALOCH, J. Through this application the applicant seeks bail in FIR No.102 of 2019 lodged with Police Station Gwalmandi, Quetta, under sections 302, 324, 427, 34. 109 of the Pakistan Penal Code, 1860 ("P.P.C.") read with section 7 of the Anti-Terrorism Act.
Earlier the bail application filed by the applicant before the Additional 'Sessions Judge-VI/MCTC-II, Quetta ("trial court"), was dismissed vide order dated 05.08.2021.
2. Brief facts of the case are that on 20th July, 2019 the complainant Muhammad Ayaz lodged the referred FIR, alleging therein that on the stated date at about 6:00 p.m., he was present at his home when heard firing, he promptly came out to street and saw his brother Muhamad Zaman in his Mercedes Black color car No.LED-8785, parked near the home in middle of road, upon which the accused persons namely Muhammad Asif, Jamal-ud-Din, Wagar and Adnan were making fire. The accused Asif was holding a Kalashnikov and he was making fire from front on driving seat whereas the remaining accused persons were making indiscriminate firing on vehicle. The accused persons while making aerial firing fled away towards- the adjacent street. He (complainant) reached to the vehicle of his brother and saw his brother in pool of blood on driving seat, who sustained bullet injuries at his face, head and had martyred due to firing of accused persons, while his nephew Sikandar who in the meantime was standing outside their house in front of gate, also received bullet injury at his hand was shouting that these peoples have killed Abu uncle. Due to firing some passerby too got injuries and fear was also spread, in the area. The motive behind the incident was that the engagement of elder daughter of his brother Muhammad Zaman was solemnized with Sameer son of Siraj-ud-Din alias Tadin, but later an due to some domestic matters his brother refused to give hands of his daughter to said Sameer.
3. The learned counsel for the applicant contended that the prosecution has record statement of witnesses including ocular witnesses i.e. PW-1 Sahibzada Jehangir and PW-3 Muhammad Burhan, but none of them implicated the applicant/accused, even PW-1 clearly stated that accused was not there at the time of occurrence; that the site map prepared on the pointation of the complainant does not show the presence of accused/applicant; that the prosecution has failed to collect any incriminating material against the applicant; that it is principle of law that the benefit of doubt goes to accused even at bail stage. Learned counsel made reference to the following Case laws: PLD 1996 SC 241, 1982 SCMR 153.
4. Conversely the learned State counsel strongly opposed the contention of learned counsel for the applicant stated that this court has already rejected the bail of co-accused Adnan. The role of accused is at par with the co-accused as the accused/applicant is nominated in the FIR with role of firing and his presence has not been denied.
5. Heard. Perused the record. The record, transpires that the complainant Muhammad Ayaz lodged the referred FIR with the allegation that the applicant along with co-accused persons with common intention by means of firing committed murder of his brother. The record transpires that the complainant recorded his statement before the trial court as PW-2, wherein he narrated the thorough detail of the occurrence, specifically assigned the role of firing to the accused and co- accused. The death of deceased due to bullet injuries has not been disputed. The MLC confirms the unnatural death of deceased and bullet injuries to the injured. The parties knew to each other prior to the incident and the occurrence took place in broad daylight, therefore there is no chance of mistaken identification. The statement of another ocular witness namely Sikandar is yet to be recorded. In site plan the presence of accused has specifically been mentioned. Though the site plan is not substantive evidence but it cannot be discarded without any reasons. At bail stage deeper appreciation is not permissible. In Bilal Khan's case 2020 SCMR 937, the Hon'ble Supreme Court of Pakistan held that "At bail stage only tentative assessment is to be made, deeper appreciation is not permissible".
6. The name of the applicant is appearing in the FIR with specific allegation that he along with rest of culprits with their common object went over, the place of occurrence, made indiscriminating firing upon deceased. At this stage it would be premature to say that the applicant has been involved in this case falsely by the complainant. The contention of the learned counsel for the applicant that the FIR has been registered with delay of one hours fifty minutes despite the fact that the place of occurrence is one kilometer from the police station, has no force. In Ayaz Ali's Case 2021 MLD 669, it was held that "No doubt there is delay of two days in lodgment of FIR, but it is explained in the FIR. Delay in lodgment of FIR even otherwise could hardly be resolved by this court at bail stage." The applicant remained absconder after registration of FIR. The prosecution during investigation has taken into possession the empties from the place of occurrence. During indiscriminating firing, it is humanly impossible for the witnesses to assign role to each accused, whose bullet hit deceased or injured. In this regard reliance is placed on the case of Noor Sultan v.
State 2021 SCMR 176, whereby it has been held as under:
5. We have heard the learned counsel for the petitioners, learned Law Officer and gone through the record.
The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter se distance between the place of occurrence and police station is 16 kilometers Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution. Otherwise it is an admitted fact that the occurrence has taken place inside the house of complainant wherein one female lost her life whereas four persons sustained injuries including three women folk. As far as the contention of the learned counsel for the petitioners that it is case of individual liability and each of the petitioner is to be treated according to the role ascribed, it is worth mentioning that in criminal matters each case has its own facts and circumstances. In the instant case, the accused persons five in number in furtherance of their common object trespassed into the house of complainant; as a consequence instant occurrence has taken place. The accused persons nominated in the crime report had a definite motive to commit the crime alleged against them, while joining hands with each other, hence, any finding qua role of each accused at this stage by this Court would certainly prejudice the case, when it is stated at bar that the trial has commenced and two prosecution witnesses has already been recorded by the learned trial court.
In such like situation, this Court has already enunciated the principles in (1980 SCMR 203)
"Muhammad Sadik and others v. The State" (1990 SCMR 307), "Allah Ditta and others v. The State" and (2007 SCMR 1793) "Gul Akbar v. The State". The observation made in 2007 SCMR 1793 is as under:- "It is to be noted that challan of the case has already been submitted, trial commenced and case is fixed for recording of prosecution evidence for 26.07.2007. The petitioner may move an application for bail before the learned trial court. We are deliberately withholding our comments on merits of the case to avoid the possibility of causing prejudice against any party. By now it is well settled that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles."
7. The grant or refusal of bail is discretionary relief. The accused cannot claim bail as right even the case does not fall within the preview of prohibitory clause of section 497, Cr.P.C. Reliance is placed on the case of 2002 SCMR 442, where it has been held by the Hon'ble Supreme Court of Pakistan that "None claim bail as of right in some bailable offence even though the same do not fall within the prohibitory clause of section 497, Cr.P.C."
8. The record reflects that there is sufficient material available on record connecting the accused with the commission of the offence. This court vide order dated 18.06.2021 rejected the Criminal Bail Application No.259 of 2021, filed by the co-accused Adnan, and the case of the applicant is similar with the co-accused.
The citations relied upon by the learned counsel for the applicant are distinguishable from the instant case as each case has its own peculiar fact and circumstances.
In view of above, the application being devoid of merits, is dismissed.
Needless to mention here that the observations made hereinabove are meant for disposal of the instant application alone, which shall have no bearing on merits of the case.