Afzal Habib, Akram and Muhammad alias Mandu, petitioners herein are accused of offences under sections 302, 307 read with section 34, P.P.C. The case had been registered against them at Police Station Saddar, D.I. Khan at 03-30 hours on 25th December, 1989.
2. According to the first information report lodged by Allah Nawaz near the spot in village Muqeem Shah, he alongwith his father Muhammad Ramzan after evening prayers went to irrigate their lands in ---Thathore---. In the meantime all the four petitioners who had reached the spot duly armed with lethal weapons, opened firing at them hitting Muhammad Ramzan whereas the first informant escaped unhurt. The occurrence was also stated to have been witnessed by Bakhtawar prosecution witness.
3. It appears that Gulab Khan A.S.I. Attached to Police Station, Saddar D.I. Khan, was on routine Gusht when he learnt about the occurrence. He, therefore, proceeded to the spot and recorded the statement of Allah Nawaz at 1-30 a.m. On 25-12-1989 on the basis of which the F.I.R. Was actually registered at the police station at 3-30 hours, the same night.
4. The accused-petitioners after their failure to seek bail from the Court of Sessions have come up to this Court for the same.
5. Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioners relying on Ghulam Qadir v.
State PLD 1967 Pesh. 267 and Muhammad Hasan v. State PLD 1982 Lah. 551 submitted that any report not lodged at the police station loses its evidentiary value. He had serious objection to the unexplained delay of 8 hours in lodging the report, particularly when the traffic was available.
According to him medical evidence was at variance with the prosecution story because there was only one entrance wound and one exit wound and only one empty had been secured for which four persons have been roped in. It was lastly argued that identification of Allah Nawaz and Bakhtawar of the assailants at points No.4 to No.7 in the site plan from a distance of 50 and 54 paces respectively was a cock and bull story.
6. As against this Mr. Abdul Latif Baloch, Advocate, appearing on behalf of the State, assisted by Mr. Muhammad Karim Anjum has vehemently opposed the plea of bail advanced on behalf of the petitioners and contended that the petitioners have been directly charged for the murder of Muhammad Ramzan in the F.I.R. Which lends ample support not only from the post--mortem report of Muhammad Ramzan but also from statements of Allah Nawaz and Bakhtawar prosecution witnesses. As for the identification, it was urged that the petitioners were the co- villagers of the prosecution witnesses and the distance of fifty and fifty-four paces was not such as to render the identification of the petitioners impossible.
7. The first contention of the learned counsel for the petitioners that there was only one entrance wound on the person of the deceased and thus the medical evidence contradicting the ocular account of occurrence entitled the petitioners to bail is simply untenable. A similar argument advanced before the august Supreme Court in the case of Snatta v. The State 1982 SCMR 208 was repelled by his Lordship Dr. Naseem Hasan Shah, J. In the following paragraph:-- "In the instant matter the F.I.R. Assigns specific roles to the petitioners and the fact that the medical report does not agree with the account of eye-witnesses of the specific blows delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply."
It would thus be noticed that contradictory versions in medical evidence and the ocular account of the occurrence is a factor which cannot be appraised in depth at the bail stage.
8. The contention that the report having been lodged at the spot and that too with considerable delay are the questions which shall be addressed at the trial. The concession of bail cannot, therefore, be extended to the petitioners on this score alone particularly when there is every likelihood for the prosecution to repel both these contentions at the trial. The next point as to whether the petitioners who are co-villagers of the deceased party could or could not be identified is also to be scrutinised at the trial.
9. The charge of murder of Muhammad Ramzan against the petitioners in common concert lends ample support from the direct charge in the F.I.R. And statements of prosecution witnesses recorded under section 161, Cr.P.C. Whose presence at the spot is not shown at the moment to be doubtful. They are co-villagers of the deceased party and prima facie they could be identified. The delay in lodging the F.I.R. Has been explained and in any case it would be taken into consideration by the trial Judge.
10. After careful consideration of all these circumstances, I am of the view that the petitioners are not entitled to bail. Their application for bail is, therefore, rejected.