' The revision petition has been addressed against the order of District Criminal Court Mirpur, dated 16-2-1999 through which the bail was declined to the petitioner accused.
2. The facts precisely stated are that the complainant Mahmood Hussain Shah lodged an F.I.R. On 7-12-1998 at 7-15 a.m. At Police Station Mirpur while contending therein that when he came out of his house at 6-30 a.m after the morning prayers, he heard the sound of firing. Meanwhile, Abrar Hussain and Asad Shah told him about the murder of Israr Hussain Shah. At this, when he reached on the spot with Abrar Hussain and Asad Shah, he found the deceased in a pool of blood at a distance of 10 to 12 feet away from the gate of his house. On this report, a case under section 302, P.P.C. Was registered.
3. During investigation it was find that the deceased wanted to get back his arms licence from the petitioner-accused and wanted to open his own shop, but the petitioner-accused did not want to hand over the licence and because of the reason he planned to kill the deceased. For the purpose, he hired Asmatullah co-accused (not before us). On 7-12-1998, on instigation of the petitioner- accused, the co-accused shot fires with .30 bore pistol and killed the deceased. Said Ali co- accused also recorded his statement under section 164, Cr.P.C. And deposed that he committed the murder of the deceased on behest, prompting, tempting and instigation of the petitioner- accused. After completion of the investigation, a challan under sections 302, 109, P,P.C. And 13/20/65, Arms Ordinance was presented on 4-1-1999 and both the accused were put on trial.
4. The petitioner accused applied for bail before the trial Court, which was not allowed. Hence, this revision petition.
5. Mr. M. Azam Khan, the learned counsel for the petitioner, vehemently argued that the petitioner- accused was not nominated in F.I.R. And a false case has been registered against him. He also contended that the statements of P.Ws. Khawaja Abdullah and Shahid Mahmood are not reliable.
He further pointed out that Mst. Zaib-un-Nisa, the widow of the deceased and one Muhammad Ashraf remained under investigation for quite sometime in this case. He submitted that the statement of co-accused, Astnattillah recorded under section 164, Cr.P.C. Cannot be used against the petitioner without proof. He maintained that the prosecution story is not reliable and the benefit of doubt may be given to the petitioner He criticized the impugned order and contended that the exercise of discretion on the part of the trial Court is perverse and fanciful. Thus, the impugned order may be set aside and concession bail may be extended in favour of the petitioner, submitted by the learned counsel for the petitioner. In support of his contention, he cited PLD 1972 SC 277 and PLD 1988 SC 14.
6. In reply, M.S. Tariq, Advocate vigorously argued that during the investigation it was found that the deceased had leased out his arms licence to the accused on rupees three thousand per month and the deceased. Wanted to get back the licence, but the accused did not want to return the same. The petitioner-accused planned and hired the co-accused, Asmatullah, and got deceased killed by him. He further contended that the prosecution has cited Khawaja Abdullah, Inspector Police (P.W.7) and Shahid Mahmood. Alias Bani (P.W.8) to prove the fact of the demand of the licence a week before the occurrence. He also submitted that weapon of offence, .30 bore pistol was recovered from co-accused, Asmatullah, from the shop of the petitioner-accused. He maintained that certain documents and arms licence have also been produced, which proves the business relation between petitioner-accused and the deceased, which became the root cause of the murder. He pointed out that the co-accused has categorically deposed the role of the petitioner in the commission of crime, in his statement under section 164 of Cr.P.C. He also submitted that deeper appreciation cannot be made at the bail stage and this cannot be held by the Court that the statement of the co-accused recorded under section 164, Cr.P.C. Is admissible or not against the petitioner. It was also argued by the learned counsel for the complainant that the use of the weapon, recovery of the pistol, recovery of bloodstained clay and statement of co- accused under section 164 of Cr.P.C. And abscondence of the petitioner and the co-accused from the scene of occurrence are sufficient to implicate the petitioner with the commission of crime and a prima facie case has been made out against the petitioner-accused. He defended the impugned judgment and submitted that the trial Court has rightly and judiciously denied the bail to the petitioner, which may not be interfered with. In support of his contention, he referred the following case-law:--
(i) PLD 1967 Lah. 1190
(ii) 1985 PCr.LJ 2987
(iii) 1986 PCr.LJ 377
(iv) 1993 PCr.LJ 2410
7. Mr. M. Mushtaq Chaudhry, the learned A.A.-G. Supported the arguments advanced by the learned counsel for the complainant and submitted that the petitioner is fully involved in the case and sufficient 'evidence has been produced by the prosecution to implicate the petitioner with the commission of crime.
8. In the light of the arguments advanced by the learned counsel for the parties, I have carefully gone through the record of the case and the authorities referred by the learned Counsel for the parties. A perusal of the record shows that the business relations between the petitioner-accused and Israr Hussain Shah, deceased, have been established by the prosecution. It is also on the record that a week before the occurrence an altercation took place between them at turning of Kass Harran (Vii 0.4) in the presence of P.Ws. Khawaja Abdullah, Inspector Police, Muhammad Ashraf Abbasi and Shahid Mahmood alias Bani about the return of the arms licence. The weapon of offence, a .30 bore pistol was recovered from the shop of the petitioner, on the pointation of the co- accused. The co-accused has also deposed before a Magistrate in his statement under section 164, Cr.P.C. About the conspiracy, instigation and prompting of the petitioner. No doubt that the petitioner is not alleged to have participated in the actual occurrence, however, according to the prosecution the murder was committed at his instance. It is also on the record that F.I.R. Was promptly lodged, the bloodstained clay and five empties of the pistol were recovered from the scene of occurrence. The postmortem report corroborates the fact that the deceased was shot dead. Thus, prima facie, it can be inferred from the facts and circumstances of the case that both of the accused hatched a conspiracy and a privity between them existed to commit the murder of the deceased.
9. I cannot agree with this contention of the learned counsel for the petitioner that the statement of the co-accused, Asmatullah recorded under section 164, Cr.P.C. Cannot be used against the petitioner at this stage. It will be relevant to not here that at this stage of proceedings, the Court cannot make the deeper appraisal of the prosecution evidence but the tentative assessment and cursory perusal of the allegations levelled in the F.I.R. And the statements of the P.Ws. Recorded under section 161, Cr.P.C. Is required to be examined. The question of credibility of the statement of the co-accused and probability or improbability of the version given by him is not admissible because it is a matter of deeper appreciation of the evidence and the arguments addressed by the learned counsel for the petitioner in this behalf travel beyond the scope of tentative assessm ent. In this respect, reference can be made to a case reported as Mian Mehraj Din and others v. The State 1985 PCr.LJ 2927.
10. As far as the case-taw referred by the learned counsel for the petitioner-accused is concerned, it lays down the principle that the law should not be stretched in favour of the prosecution for the purpose of bail and when any doubt arises it must be resolved in favour of the accused. I do not want to discuss in detail the other authorities referred by the learned counsel for the complainant, because of the distinguishable facts.
11. As it has been stated above, according to the ocular as well as documentary evidence the reasonable grounds do exist to connect the petitioner-accused with the commission of crime and he is concerned in the occurrence. The petitioner-accused is involved in a murder case for which he has been charged and accordingly he is not entitled to the concession of bail at this stage. An exercise of the discretion by the Court below while refusing the bail does not seem to be perverse or capricious. Therefore, it needs no interference by this Court.
' The result of the aforesaid discussion is that the revision petition has no merits which is hereby dismissed.