' Abdus Samad Khan petitioner, one of the accused involved in case F.I.R. No,32 dated 10-3-2003 under sections 506/337-A(ii), P.P.C., 302/34, P.P.C. Registered at Police Station Ghoriwala, District Bannu at the instance of Mst. Zarkhana, mother of Inamullah deceased, has applied for grant of bail on refusal of the same by the Courts below vide orders, dated 18-4-2003 and 6-5-2003 respectively.
2. The, prosecution story as narrated by the complainant in the Casualty Ward of D.H.Q. Hospital, Bannu is to the effect that on the day of occurrence i,e, 10-3-2003 she was present in the house in Deh Musa Khel, Bannu when she heard the report of fire shots at about 12-30 p.m. She immediately deputed her son Farmanullah to inquire as who was firing. She also followed Farmanullah. On reaching the spot she noticed Abdus Samad (petitioner), Obaidullah and Abdul Wahab (absconding co-accused) sons of Haji Abdur Rehman of her village, duly armed with kalashnikovs, beating her son Inamullah with the butts of the kalashnikovs. On seeing the complainant and her son Farmanullah, the accused made good their escape. Farmaullah arranged for a Datsun and removed his injured brother to the hospital. A dispute over construction of "Morcha" was stated to be the motive leading to the incident: The victim succumbed to his injuries and expired in the hospital, the same day. Section 302, P.P.C. Was inserted accordingly.
3. Syed Zafar Abbas Zaidi, Advocate for the petitioner in support of the bail application made following submissions:--
(i) That the petitioner had no hand in the commission of crime and he has been falsely associated with guilt on mere suspicion;
(ii) That besides an immaterial lacerated wound on the base of palmar surface of right thumb, a stitched wound was noticed on the interior scalp and that took a lacerated one. For this wound on scalp of the deceased, three persons from same family have been implicated which clearly suggests mala fides on the part of prosecution and makes the case of petitioner that of further inquiry as to who out of the three has allegedly caused the said injury;
(iii) That according to the contents of F.I.R. Petitioner and his two brothers were armed with kalashnikovs, but surprisingly they did not resort to firing at the deceased, which adversely reflects upon the case of prosecution/story of complainant even at bail stage as to whether the accused persons had allegedly come to eliminate the deceased or not. Moreover, the motive attributed to the accused in first information report also appears to be far-fetched;
(iv) That despite the alleged availability of Farmanullah brother of the deceased in the house at the relevant time, the matter was reported to police in casualty section of District Headquarter Hospital, Bannu by mother of deceased Mst. Zarkhana complainant. No reasonable explanation as to why the report was not lodged by Farmanullah is forthcoming from the record;
(v) That plea of alibi is evident from the documents regarding proceedings pending in the Court of Civil Judge, Bannu as well as affidavits of Inamullah Khan, Advocate, Nadeem Khan and Asadullah Khan has been ignored without any justifiable reason; and
(vi) that no impartial and confidence-inspiring voice is being heard to support the alleged version of complainant and moreover there is nothing material on the record to connect the petitioner with the perpetration of crime. Additionally, it is urged that prosecution version as contained in F.I.R. Is not in harmony with the post-mortem report and other material available on record.
3. Contrarily, Mr. M. Tariq Javed, Deputy Advocate-General assisted by Pir Liaqat Ali Shah, Advocate for the complainant opposed the bail application tooth and nail and submitted that prosecution is in possession of sufficient material to associate the petitioner with the murder in question and bail has been refused to the petitioner for valid reasons warranting no interference of this Court.
4. It is settled legal position that neither elaborate or deep assessment of the evidence on record nor detailed discussion on various items of evidence which the prosecution intends to produce at the trial is possible at bail stage. It can also not be denied that whatever is alleged in the F.I.R.
Cannot in all cases be taken as conclusive or gospel truth. If the allegations in F.I.R. Are prima facie negative by the other material patent on record then that can also be taken into consideration for the purpose of bail. Such defects and doubts in the prosecution case cannot be totally ignored merely because the accused is directly charged in the F . I . R.
5. It is not denied that where the prosecution convinces the Court that there are reasonable grounds to believe that the accused has committed the crime charged with then the Court must refuse to extend the concession of bail to the accused. In the instant case, the petitioner alongwith his brothers have been specifically named in the promptly lodged report as one of the perpetrators of the crime. The medical evidence and witnesses of the spot fully support the charge. As regards the question of further probe and inquiry into the petitioner's guilt, suffice it to observe that there is some scope for further inquiry qua the guilt of an accused in every criminal case and on this consideration alone, bail cannot be claimed by an accused as a matter of right as held in Arbab Ali v. Khamiso and others 1985 SCM R 195 and Suleman Khan and another v. Buner Khan and another 2003 YLR 181.
6. Having found that sufficient material is available on the file to show that there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death imprisonment for life or imprisonment for ten years, I am not persuaded to release him on bail. The application of the petitioner fails and bail is refused. However. Learned trial Judge shall conclude the trial as expeditiously as possible.
7. The observations made above are tentative in nature and main case should be decided in accordance with law, uninfluenced by whatever A is observed hereinabove.