' Having been refused bail by the Courts below, the petitioner has approached this Court for his release on bail.
2. A case was registered vide F.I.R. No,325 on 15-7-1998 under section 302/324/ 34, P.P.C. At Police Station Saddar Haripur. The brief facts of the case are that on 15-7-1998 at 10.30 p.m. Muhammad Riaz, the owner of tractor No,SAA-9817 was driving his tractor back after ploughing the land near Bridge Baldher. A person with torch-light signalled him to stop, at which he stopped the tractor.
Two other persons duly armed with pistols appeared. Muhammad Riaz alighted the tractor. The persons pistols in their hands started firing at with which he was hit on his chest expired there and then. All the three person decamped from the spot.
3. Although no person was named in the F.I.R. But on 19-7-1998 Ghulam Farid, the complainant made a supplementary statement thereby charging Nazak son of Manzoor Ilahi, Shabbir Hussain Shah alias Jiya son of Ali Raza Shah, Muhammad Riaz alias Kala and Khan Zada alias Bhula. One of the accused Nazak was arrested who made a confessional statement before the Judicial Magistrate, Haripur thereby giving effective role to accused-petitioner Shabbir Hussain Shah. The statements of Muhammad Younas son of Faqir Muhammad, the father of Muhammad Riaz deceased and Muhammad Nawaz son of Muhammad Younas the brother of deceased were recorded on 19-7-1998 under section 161, Cr.P.C. These two persons also charged the abovementioned four accused. Shabbir Hussain Shah accused was arrested on the night of 23rd/24th July, 1998 and from his possession a .30 bore pistol fully loaded and five cartridges of 30 bore were recovered. The Investigating Officer had recovered two empties of .30 bore, two empties e7f-i12 bore and two live cartridges of .32 bore from 'the spot. The recovered .30 bore pistol and empties were sent to Firearms Expert whose report is positive.
4. The learned counsel for the petitioner argued that in the F.I.R., the complainant had charged three persons. Although two persons out of the three were charged for firing but nobody was attributed specific role of killing the deceased. Only one injury has been found on the body of deceased for which two persons have been charged. He further argued that the confession made by co-accused Nazak was exculpatory, hence the same cannot be relied upon. He further stated at bar that Nazak, the co-accused had retracted his confession and that the recovered empties were kept by the Investigation Officer till the recovery of crime weapon for couple of days and as such the report of the Fire-arms Expert is also not admissible.
5. On the' other hand, learned counsel for the complainant Mr. Tehmas Khan Jadoon argued that there is strong prima facie case against the accused-petitioner Not only the complainant has charged the accused-petitioner along with three others in his supplementary statements but the father Muhammad Younas and Muhammad Nawaz the brother of the deceased have also charged the accused-petitioner in their statements recorded under section 161, Cr.P.C. The co- accused Nazak had made judicial confession before the competent Court whereby a specific role of firing was assigned to the accused-petitioner. Recovery of .30 bore pistol from the possession of accused and empties recovered from the spot were sent to Arms Expert whose report is positive.
Nazak co-accused has also pointed out the places where the accused were present at the time of commission of offence and that the accused-petitioner is a previous convict, hence not entitled for concession of bail.
6. Qazi Muhammad Ghazanfar, the learned A. A.-G. Also argued that the confessional statement made by co-accused Nazak, recoveries from the spot and recovery of weapon of offence coupled with the report of Arms Expert duly connect the petitioner with the commission of offence, hence the petitioner is not entitled for concession of bail.
7. I have heard the arguments of the learned counsel for , the parties and gone through the record of the case.
8. The argument of the learned counsel for the petitioner that the confession of co-accused Nazak was not voluntary and the same '11as been retracted, therefore, it is inadmissible. This argument is not tenable because voluntary or involuntary, truthfulness, legality and propriety of the confessional statement cannot be scrutinized at bail stage as it would be the trial Court to go into such details. In this regard, I am guided by principles laid down in "Rehman v. Ghulam Qadar Khan"
1992 PCr.L.J. 1513 and "Abdul Malik v. The State and another" 1988 MLD 1307. existed with co-accused to have named accused to be person who had fired at the deceased. No case, therefore, for grant of bail to the accused-petitioner is made out. The bail application in hand is dismissed in the circumstances.
9. The next argument of the learned counsel for the petitioner is that it is not clear as to from whose shot the deceased died. Suffice it to say that at bail stage it is wholly immaterial as to whose shot proved fatal. According to medical report, the deceased had received one fire arm entry wound 1/6" in the mid-line between two nipples in the sternum bone. The empties of .30 bore recovered from the spot were found to be fired from pistol recovered from accused. Reliance is placed on "Haji Gulu Klian v. Gul Daraz Khan" 1995 SCM R 1765.
10.The tentative assessm ent of material on record shows that there is prima facie case connecting the accused-petitioner with the commission of offence. Not only the complainant in his supplementary statement has charged the accused-petitioner but Muhammad Younas, the father of the deceased and Muhammad Nawaz, the brother of the deceased have also charged the accused-petitioner with three others in their statements recorded under section 161, Cr.P.C. The confession made by co-accused Nazak, the recovery of .30 bore loaded pistol along with five cartridges and the report of the Arms Expert which is in positive prima facie prove truthfulness of the confession of co-accused. Motive as furnished in the confession of co-accused had added towards the culpability of the accused,. No reasons existed with co accused to have named accused to be person who has fired at the decreased. No case therefore for grant of bail to the accessed-petitioner is made out. The bail application in hand is dismissed in the circumstances.