' Muhammad Idris petitioner has moved instant application for grant of bail under section 497, Cr.P.C. On refusal of the same by the Courts below vide orders, dated 2-8-2003 and 19-8-2003 respectively. The petitioner stands involved in case F.I.R. No,293, dated 12-6-2003 registered at the instance of Mst. Farzana, complainant under sections 302/404/34, P.P.C., Police Station Yakatoot, Peshawar City.
2. Messrs Khalid Khan and Bashir Ahmad Khan Tangi, Advocates for the petitioner, in- support of the bail application, contended that prosecution is in possession of no incriminating material to implicate the petitioner with the crime and that the whole story of the prosecution is based o^ mala fide and concoction. Additionally, they urged that Hashim Khan husband of Mst. Tahira deceased had a hand in the affair and the petitioner has been charged on mere suspicion. It was also urged that on the day of occurrence i,e, 12-6-2003 the petitioner was in Islamabad and thus, the question of petitioner having participated in the guilt would not arise.
3. Mr. Muhammad Fayyaz, Advocate for the State assisted by Mr. Javed A. Khan, Advocate, for the complainant opposed the bail application tooth and nail and maintained that petitioner's active participation in the occurrence being sufficiently spelt out, he does not deserve the grant of bail in this case, which undoubtedly falls within the prohibitory clause of section 497, Cr.P.C.
4. An accused would only be entitled to the discretionary relief of bail when on the tentative assessm ent of materials brought before it, the Court reaches the conclusion that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence, or an offence punishable with death, imprisonment for life or imprisonment for ten years, and in absence of any such finding to this effect the Court is debarred to hold that the case is of further inquiry entitling the accused to bail within the meaning of section 497(2), Cr.P.C. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively.
5. No doubt it is true that in the F.I.R. Lodged by Mst. Farzana complainant on 12-6-2003, no one has been charged for the murder of Mst. Tahira Bibi but it is equally true that in the magisterial statement of the complainant recorded on 21-6-2003 the petitioner has been implicated in the case and charged for the offence in question. The petitioner is real uncle of the complainant and apparently there is no enmity between the complainant party and the petitioner prompting the former to implicate the latter falsely. In support of the bail application the plea of alibi has also been taken and it is contended that at the relevant time the petitioner was in Islamabad and as such the question of the petitioner having participated in the crime does not arise. I am afraid, this ground cannot be pressed into service at this stage. The alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence yet to be recorded by the trial Court. Muhammad Shaheen and others v. Arshad Siddique and 2 others 1997 SCM R 1829 and Safirullah v. The State and another 2003 PCr.LJ 1691 (Peshawar).
' Pursuant to above discussion, I am not persuaded to accept the application of the petitioner and admit him to bail. The application is dismissed and bail is refused. Needless to add here that the observations above are tentative in nature and relate to the order in hand only.