' Petitioners Umar Khan son of Faqir Khan and his son Muhammad Riaz, a P.T.C. Teacher in a Primary School, who are detained in case F.I.R. No,402 dated 9-9-2002, registered at Police Station Cantt.
Kohat under sections 302/324/34, P.P.C., have approached this Court for bail after their similar applications moved before learned Illaqa/Judicial Magistrate and Additional Sessions Judge, Kohat, were rejected vide orders dated 16-11-2002 and 4-1-2003 respectively.
2. The prosecution story in brief is that on the day of occurrence i,e, 9-9-2002 at 9-00 a.m.
Complainant Khalid Mehmood alongwith his father Resham Gul and Aunt Mst. Siyal Jana was on his way to the District Courts to attend date. When at about 9-40 hours they reached Kaochhri Road near Garrison Petrol Pump, they found Yar Badshah son of Zarghum Shah Resident of Sheikhan, Umar Khan and his sons Riaz Khan and Ayaz Khan residents of Togh Bala, Kohat, already present there. They started firing at the complainant party as a result of which Resham Gul was hit and injured. Regarding motive it was disclosed that a month prior to the occurrence Mst. Bibi Ruqia wife of Yar Badshah was injured and Resham Gul and others were charged for it.
3. Mr. Shaukat Hussain, Advocate for the petitioners, in support of the bail application, contended, inter alia, that on the fateful day petitioner No,1 was with a 'Tablighi Jamat' which had come to the village and petitioner No,2 was on his duty and as such the question of the petitioners having participated in the offence does not arise and involvement of the petitioners in the case requires further inquiry. To support the contention, he invited my attention to affidavits sworn by Muhammad Islam, Jan Muhammad, Amir Saeed, Pir Badhsha and others. The learned counsel also reiterated that claim of the complainant and his aunt, having witnessed the occurrence stands belied by medical evidence and site plan which clearly tend to suggest that at the relevant time they were not present at the site of occurrence and had not seen the occurrence. Concluding the arguments, the learned counsel urged that the petitioners have been falsely roped in on account of having previous enmity with the complainant party. In this respect my attention was invited to case F.I.R. No,207 registered at Police Station Gumbat under sections 302/324/1487149, P.P.C.
4. Ms. Musarrat Hilali, Additional Advocate-General, on the other hand, opposed the bail application and submitted that prosecution is in possession of sufficient evidence to connect the petitioners with commission of crime and they have been refused bail by the Courts below for valid reasons which hardly calls for interference of this Court. Mr. Muhammad Amin Lachi, Advocate for the complainant, adopted the arguments of learned Additional Advocate-General and resisted the bail application tooth and nail.
5. To consider a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisions under subsection (1) of section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C.. The power conferred by section 497, Cr.P.C. Is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material shall be.
The material would consist of accusation made in the report to the police, nature and credentials of evidence with the prosecution proposed to lead in the case and all such relevant circumstances surrounding the evidence.
6. At the bail stage a deep scrutiny of evidence ocular or circumstantial is neither possible nor desirable. The close scrutiny of evidence is only possible and admissible after the statements of witnesses are recorded at the trial and they are subjected to cross-examination. At the bail stage if that is a matter which, if remains unrebutted, prima facie, connects the accused person with an offence punishable with death or imprisonment for life, he must be refused the concession of bail.
7. Mere filing of affidavits for establishing the plea of alibi would not constitute a ground for bail either before the Investigating Officer or the Court. The aforesaid plea has to be established before the trial Court. In Nasser Ahmed v. The State PLD 1997 SC 347 it was observed:-- "At the time, of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses sometimes take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of' prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications -are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court.
It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits."
8. The crime is alleged to have taken place on the morning of 9-9-2002 at 9-00 a.m. And matter was reported to the police same day at 9-40 a.m. In C.M.H., Kohat. In this case the petitioners alongwith two absconding co-accused are directly nominated in the promptly lodged report for causing tire-arm injuries to the victim resulting into his death in the hospital. The eye-witnesses fully support the charge and medical evidence is in consonance with the ocular account of the incident. In the circumstances. I am of the view that there is sufficient material on the record which satisfies the mind of the Court regarding participation of the petitioners in the murder of the deceased and attempted murder of complainant and his aunt. It is true that the plea of alibi raised in the bail matter may not be outrightly rejected and can be gone into for the purpose of grant or refusal of bail as held in Malik Muhammad Salheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829 and Muhammad Fayaz v. The State PLD 1993 Pesh. 173, but it is equally true that in the present case, the theory of alibi cannot be considered sufficient for grant of bail. The plea is still to stand the test of scrutiny on the basis of evidence.
9. Pursuant to the above discussion I find that no prima facie case for grant of bail has been made out and the Courts below have declined to enlarge the petitioners on bail for solid reasons which do not call for interference of this Court. The bail application fails which is hereby dismissed.
10. Before parting with the matter I would like to make it clear that the observations made above are tentative in nature and the learned trial Judge shall decide the case with open mind on the basis of the material produced before him.