Mumtaz vs State

2014 P Cr. L J 465

[Peshawar]

Before Waqar Ahmad Seth, J

MUMTAZ and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.686-A of 2012, decided on 4th January, 2013.

(a)Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, possession of illegal weapons---Bail, refusal of---Deceased implicating accused before his death---Effect--- Accused persons allegedly fired at the deceased and injured witness---Although some of the prosecution witnesses resiled from their statements and negated version of complainant, but most important piece of evidence was statement of deceased recorded under S.161, Cr.P.C. two days before his death, wherein he categorically charged accused persons for causing him injuries by firing---Deceased was the principle witness and was likely to know more than any other persons about the cause of his death--- Medical evidence and firearm expert's report also supported the version of prosecution---Trial had not commenced and evidentiary value and veracity of statement of deceased was to be determined by the Trial Court after recording of evidence---Accused persons were prima facie connected with the commission of the offence, which fell within the prohibitory clause of S.497, Cr.P.C.---Bail application was dismissed in circumstances.

Abid Ali v. The State 2011 SCMR 161; Muhammad Umar v. The State and another PLD 2004 SC 477; Sanjay Chandra and others v. Central Bureau of Investigation and others 2012 SCMR 1732; Pur Bux v. The State 2012 SCMR 1955; Rehmat Ali, and another v. The State 1979 SCMR 30; Ghulam Abbas v. The State 1996 SCMR 978; Roshan Din and another v. The State 2001 MLD 1890; Muhammad Ali v. The State 2008 PCr.LJ 87; Mitho Pitafi v. The State 2009 SCMR 299; Maulvi Hanif v. The State 2007 YLR 388; Nazar Hussain v. The State and another 2008 PCr.LJ 1505; Ijaz Ahmad and another v. The State 1997 SCMR 1279; Gul Hassan v. The State 2002 MLD 1502 and 1990 SCMR 307 ref.

(b)Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Assessment of evidence---Scope---At bail stage court had to tentatively form its opinion by assessing the evidence available on record without going into merits of the case.

Saeed Akhtar Khan for Petitioners.

Muhammad Nawaz Khan Swati, A.A.-G. for the State.

Date of hearing: 4th January, 2013.

JUDGMENT

WAQAR AHMAD SETH, J.---Mumtaz and Jalal Khan seek their post-arrest bail in case F.I.R. No.809 dated 6-8-2012 for offences chargeable under sections 302/324/34 of Pakistan Penal Code, 1860 read with section 13 of the Pakistan Arms Ordinance, 1965 registered in Police Station Havelian, District Abbottabad.

2.The case of the prosecution, as set up in the F.I.R., is that the complainant Jumma Khan son of Ghulam Khan on 6-8-2012 at 12.00 hours reported to the police in RHC Havelian that his brother Tahweez Khan along with his son Zar Gul Khan, came from Taxila to Sultanpur Havelian to participate in funeral ceremony of his maternal aunt's daughter wife of Hanif Khan, which was to be held at 9-00 a.m.; that at about 9-45 a.m. Azam Khan, son of his maternal uncle informed him that after funeral, his brother Tahweez Khan was done to death on the spot by Zareen son of Mirza, Mumtaz son of Amir Khan and Jalal Khan son of Rozi Khan with firearms, while his nephew Zar Gul Khan was seriously injured, who was being taken to the hospital by the people; that on receipt of this information, he reached there and found dead body of his brother in RHC Havelian and his nephew was taken to Hospital at Abbottabad for treatment; and that the motive for the offence was previous enmity.

3.Learned counsel for the petitioners argued that the petitioners were falsely implicated due to previous enmity; that the person who allegedly informed the complainant about the incident has negated the version of the complainant in his statement recorded under section 164, Cr.P.C.; that there is nothing incriminating on the record, which could connect the accused petitioners with the commission of the offence; that P.Ws. Nasim Gul and Abdul Haleem Khan also sworn affidavits, wherein, they disowned their statements to have been recorded under section 161, Cr.P.C. at their instance; that three accused are charged for causing injuries to Zar Gul Khan and it was not clear on record that with whose fire shot he was hit; and that the case of the accused petitioner is arguable for the purpose of bail and absconsion alone is not sufficient for refusing bail to them, as bail cannot be withheld as punishment. Learned counsel for the petitioner placed reliance on Abid Ali v. The State (2011 SCMR 161), Muhammad Umar v. The State and another (PLD 2004 SC 477), Sanjay Chandra and others v. Central Bureau of Investigation and others (2012 SCMR 1732), Pur Bux v. The State (2012 SCMR 1955), Rehmat Ali and another v. The

State (1979 SCMR 30), Ghulam Abbas v. The State (1996 SCMR 978), Roshan Din and another v. The State (2001 MLD 1890), Muhammad Ali v. The State (2008 PCr.LJ 87), Mitho Pitafi v. The State (2009 SCMR 299), Maulvi Hanif v. The State (2007 YLR 388); Nazar Hussain v. The State and another (2008 PCr.LJ 1505), Ijaz Ahmad and another v. The State (1997 SCMR 1279), Gul Hassan v. The State (2002 MLD 1502) and an unreported judgment of this Court in case titled 'Taj Muhammad v. The State' decided on 13-10-2008.

4.Conversely, learned AAG argued that the accused petitioners were directly charged for commission of the offence for dual murder; that the occurrence had taken place in a broad- daylight after the funeral; that deceased Zar Gul Khan in his statement under section 161, Cr.P.C., which is to be admitted as dying declaration in the evidence by the trial Court, has duly charged the accused petitioner for effective firing and causing him injuries before his death; that the report of Firearms Expert regarding empties and .30 bore pistol recovered on the pointation of accused petitioner Jala Khan was in positive; and that the trial in the case has commenced. In support of his arguments, learned AAG relied on 1990 SCMR 307.

5.The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.

6.It is by now settled principle of law that at bail stage only the tentative assessment of evidence is to be made and deeper appreciation of evidence is neither required nor warranted by law, therefore, the Court has to tentatively form its opinion by assessing the evidence available on record without going into the merits of the case.

7.No doubt, P.W. Azam Khan, as per contents of the F.I.R. had informed the complainant about the occurrence, has resiled from his statement and similarly, P.Ws. Naseem Gul and Abdul Haleem, have also negated the version of the complainant in their statements recorded under section 164, Cr.P.C. However, the most important piece of evidence available on the record is the statement of Zar Gul Khan deceased recorded under section 161, Cr.P.C. by the Investigating Officer two days before his death on 6-8-2012, wherein, he has categorically charged the present accused petitioners for causing him injuries by firing at him with .30 bore pistol. Thus, the injured person, who is now dead, is generally the principle witness and was likely to know more than any other person about the cause of his death. So, Zar Gul Khan, then injured has assigned specific role of causing injuries with .30-bore pistol to the present accused petitioners. Similarly, the medical evidence and the Firearms Expert's report also support the version of the prosecution at this stage. Moreover, the trial has been commenced and surely, the veracity, evidentiary value and the admissibility of the said statement of the deceased would be determined by the trial Court after recording evidence of the prosecution. Hence, in view of peculiar facts and circumstances of the matter, at this stage the accused petitioners are 'prima facie' connected with the commission of the offence, which definitely falls within the prohibitory clause of section 497 of Criminal Procedure Code, 1898.

8.Accordingly, for the reasons stated hereinabove, the present application for post-arrest bail is dismissed.

However, the trial Court is directed to conclude the trial of the petitioner, within a period of three months, if not earlier, from the date of receipt of this order.

MWA/22/P Bail refused.