The petitioner, namely Nizam, along with absconding accused Irshad son of Abdul Razzaq and Abdul Razzaq son of Sarbuland stands charged for having brutally killed Rafique son of Abdul Khaliq vide F.I.R. No. 937 lodged in Police Station University Town, Peshawar under section 302/34, P.P.C. Recorded on 18-12-1994.
2. The occurrence allegedly took place on 18-12-1994 at 10-30 hours. The report was promptly lodged on the same day at 10-30 a.m. The accused was however apprehended on 15-4-1996. In other words, he remained as an absconder for a period of more than 15 months.
3. After having failed to procure bail from the lower Courts the petitioner has now knocked at the door of this Court for the redress of his grievance and has prayed that he be granted the concession of bail.
4. Mr. Munir Khan, Advocate, learned counsel for the petitioner and Mr. Fateh Muhammad Khan, Advocate, learned counsel for the State present and heard. I have also gone through the record of the case with some degree of care.
5. The only point which was agitated before me is that one of the two eye--witnesses, mentioned in the F.I.R., who were present on the spot and had allegedly seen the occurrence, namely Halim, has filed an affidavit (Exh.P. 1) in this Court wherein he has stated that he was not present at the spot and had not seen the occurrence. According to the affidavit his name had been wrongly included as an eye-witness in the F.I.R. The learned counsel for the petitioner Mr. Munir Khan, Advocate, therefore, prayed that the statement of P.W. Halim be accordingly recorded on oath. The needful was therefore done. It would be appropriate to reproduce the said statement here to assess its credibility and to find out as to what prompted him to make such a statement. Halim stated on oath:--- "I was asked by Mr. Munir Khan, Advocate, counsel for the petitioner, to execute the affidavit which is Exh. P.1. I have seen the same. It has been duly thumb-impressed by me.
2. On the day of occurrence I was present in my ' Hujra' which is situated in Tehkal Payan. On hearing the hue and cry, I was attracted to the scene of occurrence. It was there that somebody informed me that Rafique son of Abdul Khaliq has been shot dead by somebody. However, I did not find the body there. It had been shifted to the Hospital or the Police Station. Similarly, the complainant, Mst. Pari Jana was also not present on the spot.
3. Since the complainant, deceased and the accused-petitioner are all related to me, therefore, I immediately sent my son Akbar Shah to inform Mst. Pari Jana. My son Akbar Shah went with Atifullah, in his car, to the house of the complainant and brought her to the spot in the car.
4. I do not know as to what happened thereafter. I do not know whether she went to the Police Station or to the Mortuary from the spot."
6. The learned counsel for the petitioner contended vehemently that in view of the abovementioned statement of one of the alleged eye-witnesses, the case against the petitioner has become that of further enquiry. He further stated that, in the circumstances, the petitioner has become entitled to be released on bail, not as a matter of grace but as a matter of right. To support his contention he placed reliance on case titled Muhammad Nawaz alias Najja v. The State 1991 SCM R 111, wherein their Lordships (D. B.) of the Honourable Supreme Court of Pakistan held as under:--- "Nasim Hassan Shah. J.--- In pursuance of the notice dated 13-3-1990 to the Investigating Officer, Police Station Qila Subha Singh, District Sialkot directing him to produce Rehmat Ali and Sabir Hussain P. Ws. Before this Court, the Police Officer has appeared today along with the above named two P.Ws.
2. The P.Ws. Have been questioned by us and they supported the averments made in their affidavits to the effect that the present petitioner Muhammad Nawaz alias Najja is not implicated in the occurrence
3. Mr. A. S. Hashmi, learned counsel for the State, was unable to oppose the prayer for bail, in view of the above statements.
4. This petition is converted into an appeal. The petitioner is allowed bail in the sum of Rs.30,000 with the two sureties in the like amount to the satisfaction of the A.C., Narowal."
7. I am afraid I cannot find myself in agreement with the contention of the learned counsel for the petitioner inasmuch as the facts of the present case are quite different from the facts of the case referred to above. In the case in hand, even if the version of P.W. Haleem, one of the alleged eye- witness, is discarded still the version of the other eye-witness namely, Faqir Hussain son of A, Khanzada, remains in the field. Admittedly the petitioner is directly charged in the promptly lodged report for having effectively fired at the deceased, along with his co-accused, who are still fugitives from law, thereby brutally killing him on the spot. It may be pointed out that in the process, the deceased had received 14 bullet iniuries on his person. Besides, the petitioner has himself remained as an absconder for a period of 16 months or so for which he has not furnished any plausible/reasonable explanation so far.
8. Accordingly, without dilating upon the merits of the case at this stage, lest it may not prejudice the judicial mind of the trial Court, I am of the considered view that reasonable grounds do exist for believing that the petitioner-accused has committed the offence charged with and that therefore, he is not entitled to be extended the benefit of bail. Needless to mention that his case is also hit by the prohibitory clause of section 497, Cr.P.C.
9. Being misconceived this bail petition is accordingly dismissed.