Faiz ul Wahab vs State.

2011 M L D 1352

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

FAIZ UL WAHAB---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 714 of 2011, decided on 13th May, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497--Penal Code (XLV of 1860), Ss.302/449/34---Qatl-e-amd, house-trespass---Bail, refusal of---Accused and two co-accused, had directly been charged for the murder of a young girl, when they attacked the complainant party in their house and resultantly daughter of the complainant received firearm injuries and succumbed to the same--- Accused was the real uncle of absconding co-accused, the occurrence was reported within fifteen minutes, wherein accused along with two other co-accused were nominated---Facts of the case had direct implications for the commission of offence, which could not be ruled out---Deeper appreciation of material available on the record, at bail stage could cause prejudice to the case of prosecution---Tentative assessment had made out a case for refusal of bail---Promptly lodged report was normally based on actual happening which ruled out the question of false implication---Accused, though had raised the plea of alibi, but such a plea, unless proved through cogent evidence, could not be accepted as it was and it would only be possible before the Trial Court who could then opine about its genuineness--- Material available before the court was sufficient enough to prima facie establish the involvement of accused in the commission of offence---Accused, in circumstances, could not be held entitled for his release on bail---Bail application was dismissed, in circumstances.

Haji Muhammad Yousaf v. The State and another 2005 YLR 2418; Awal Rahman and another v. The State and another 2006 YLR 1693; Shakil Khan and another v. The State and another 2008 YLR 2520; Asmatullah and another v. The State 2004 PCr.LJ 2023 and Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829 distinguished.

Mst. Zulekha Bibi v. Abdul Samad and another 1995 PCr.LJ 1730; Siraj and another v. The State and another 2000 PCr.LJ 1220; Nawab Khan v. The State and another 2010 PCr.LJ

1463 and Muhammad Jehangir v. The State 2002 PCr.LJ 1039 ref.

Sahibzada Assadullah for Petitioner.

Ms. Shazia Naureen for Respondent No.1 the State.

Arif Rasool for the Complainant.

Date of hearing: 13th May, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner through instant petition seeks his release on bail in case F.I.R. No.149 dated 3-3-2011 Police Station, Hoti District Mardan registered under sections 302/449/34, P.P.C. at the report of one Taj Muhammad son of Toar Gul whereby the accused/petitioner along with two other co-accused were charged for murder of Mst. Mariya daughter of the complainant. Motive for the offence as given in the F.I.R. was the refusal of the hand of deceased to co-accused, Rohail son of Fazal Maabood.

2.The learned counsel, while claiming the innocence of the accused/petitioner submitted that he has falsely been implicated in the case. He being school teacher was present in the school at the relevant time where he was posted and to this effect many school teachers and persons have sworn in their affidavits which are available on the file, make the involvement of accused/petitioner as doubtful and his case as that of further inquiry. He further submitted that the direct motive and effective role of firing is also given to the co- accused, Rohail and involvement of the accused/petitioner is only to the effect that he being a Jirga Member in the past on behalf of co-accused, Rohail and had asked for the hand of the deceased for the co-accused Rohail. In support of his submissions, the learned counsel for the petitioner placed reliance on the cases of Haji Muhammad Yousaf v. The State and another (2005 YLR 2418), Awal Rahman and another v. The State and another (2006 YLR 1693), Shakil Khan and another v. The State and another (2008 YLR 2520), Asmatullah and another v. The State (2004 PCr.LJ 2023) and Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others. (1997 SCMR 1829).

3.As against that the learned counsel for the respondent No.2/complainant submitted that the accused/petitioner along with other co-accused was charged in the case in a promptly lodged F.I.R. which rules out the factum of his false involvement in the case, recoveries of empties and blood from the spot further supports the version of complainant. Medical evidence has also confirmed the stance of .complainant. He while controverting the arguments of learned counsel for petitioner regarding the plea of alibi submitted that in presence of sufficient incriminating material connecting the accused/petitioner with the commission of offence, the plea of alibi raised by the petitioner cannot be looked into at this stage which requires to be proved and examined at the trial and not at bail stage. The

learned counsel in support of his submissions placed reliance on the cases of Mst. Zulekha Bibi v. Abdul Samad and another (1995 PCr.LJ 1730), Siraj and another v. The State and another (2000 PCr.LJ 1220), Nawab Khan v. The State and another (2010 PCr.LJ 1463) and Muhammad Jehangir v. The State (2002 PCr.LJ 1039).

4.Ms. Shazia Naureen, advocate, learned counsel for State also supported the submissions made by learned counsel for complainant and requested for dismissal of the bail application.

5.The learned counsel for the parties as well as learned State counsel were heard and record of the case was perused.

6.The perusal of the record would reveal that the accused/petitioner along with his two other co-accused have directly been charged for the brutal murder of young girl who attacked the complainant party in their house and resultantly daughter of the complainant Mst. Mariya received firearm injuries and succumbed of the same in her way to the hospital. Motive is also there, the petitioner is the real uncle of the absconding co- accused, the occurrence was reported within fifteen minutes wherein the petitioner along with two other co-accused was nominated are the facts having direct implications for the commission of offence which cannot be ruled out at this stage. The submissions made by the learned counsel for the petitioner, if considered at this stage of the case, then I am afraid, it would amount to deeper appreciation of material available on the record. Such an appreciation at bail stage may cause prejudice to the case of prosecution. The tentative assessment makes out a case for refusal of bail as promptly lodged report is normally based on actual happening and it rules out the question of false implication. Though the accused has raised the plea of alibi but f such a plea unless proved through cogent evidence cannot be accepted as it is and it would only be possible before the trial court who can then opine about its genuineness.

7.At present the material available before the court is sufficient enough to prima facie establish the involvement of accused/petitioner in the commission of offence. So, in this view of the matter, the accused/petitioner cannot be held entitled for his release on bail. The case-law referred to by the learned counsel for the petitioner is distinguishable so not applicable in the circumstances of present case, as in the criminal dispensation of justice, each and every case has to be seen according to its own facts and circumstances.

So, in this view of the matter, this bail application being merit less is hereby dismissed as such.

H.B.T./182/P Bail refused.