' On the morning of 15-2-2004, Mohabat Khan complainant of this case was informed that his cousin Jalat Khan son of Saifal. Chaukidar, has been shot to death and the dead body of the deceased is lying in front of the hotel of Aziz Khan situated at Adda Michankhel, Lakki Marwat. The complainant hurriedly rushed to the spot and found the dead body lying at the stated spot. He reported the matter to the police same day at 07-20 hours wherein nobody was charged for the murder of Jalat Khan deceased. Resultantly, a case under sections 302/457/380/411/34, P.P.C. Read with section 13 Arms Ordinance was registered at police Station, Lakki Marwat on 15-2-2004.
2. On the following day of the occurrence, Aziz-ur-Rehman son of Hashim Khan in his statement recorded under section 164, Cr.P.C. Charged the petitioner and three others namely Imran, Shakeel and Javed maintaining that on the night of occurrence he was on the way to Adda to catch Bus for Peshawar. When he reached the metalled road, he heard the report of fire shot and saw tour persons running away from the spot. He recognized them in the light of electric bulb. On return from Peshawar, he informed his uncle Mohabat Khan complainant about the incident. Azizur- Rehman son of Muhammad Hussain, owner of Aziz Hotel in his statement recorded under section 164, Cr.P.C. Also charged the petitioner and his companion for committing theft from his shop and causing death of Jalat Khan deceased. The petitioner has approached this Court for grant of bail on refusal of the same by Judicial Magistrate and Sessions Judge, Lakki Marwat vide their orders dated 24-3-2004 and 16-4-2004 respectively.
3. In support of bail application, Mr. Khawaja Muhammad Khan, Advocate for the petitioner forcefully contended that there is no tangible evidence on record against the petitioner; that the police has fabricated some evidence against the petitioner; in the shape of statements under section 164. Cr.P.C. Of Aziz-ur-Rehman son of Hashim Khan and Aziz-ur-Rehman son of Muhammad Hussain; that such statements carry no value in the eye of law. It was next contended that from the available material, it could not be said as to who caused fatal injury which leaves room for consideration as to the common intention of the petitioner and his companion to kill the deceased. Additionally, it was urged that the absence of the name of the petitioner from the F.I.R.
Itself constitutes sufficient ground for making further inquiry into the question of guilt or otherwise within the contemplation of subsection (2) of section 497, Cr.P.C. To add vigor to the submissions, he placed reliance on Muhammad Aslam and another v. The State through A.-G. Punjab and another 1997 SCM R 251; Azeem and others v. The State 2004 PCr. U 145 Lahore; Aslam Khan v. Qaisar Khan.And 2 others 1999 PCr.LJ 582 Lahore and Sufi Mahinwal v. The State 1994 PCr.L.I 746 Lahore.
4. On the contrary, Mr. Farooq Akhtar, Advocate for the State assisted by Haji Mirza Ali Khan, Advocate for the complainant strongly opposed the bail application and maintained that prosecution is in possession of sufficient material to connect the petitioner with the commission of crime and having regard to the facts and circumstances of the case, the learned forums below were quite justified to decline the relief of bail to the petitioner.
5. Before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of section 497, Cr.P.C., in its totality and the sine qua non for releasing an accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C. Or to prevent the abuse of the process of Court to do justice, keeping in view the particular facts of each case. The bail in the case of commission of a non-bailable offence and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. Is not to be granted as a matter of course, with the simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.
6. It is settled principle of law that at bail granting stage the material available on record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected with the crime in question and hence, no detailed inquiry is to be made by the Court.
7. No doubt it is true that the F.I.R. Is silent regarding the names of the culprit/culprits and no-one is charged for the offence in question but the fact cannot be lost sight of that prosecution has collected sufficient material to connect the petitioner with the guilt which disentitles him foi the concession of bail. The authorities referred to by learned counsel for the petitioner are aptly not applicable to this case for its distinguishable facts and circumstances and are of no help to the petitioner. The application fails which is hereby dismissed. HOwever, the learned trial Court shall conclude the case as expeditiously as possible. Criminal Miscellaneous Quashment Petition No.15 of 2004, decided on 13th September, 2004.
8. Any observation tnade above is purely tentative and shall not affect the merits of the case.