Aziz ur Rehman vs Din Bibi

2014 Y L R 2367

[Peshawar]

Before Muhammad Daud Khan, J

AZIZ-UR-REHMAN---Petitioner

Versus

DIN BIBI and 5 others---Respondents

Criminal Miscellaneous Bail Petition No.79-B of 2014, decided on19th May,

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

----S. 497---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Bail, refusal of--- Promptly lodged F.I.R.---No question of misidentification---Long abscondment of accused---Accused was alleged to have killed the deceased in front of his mother/complainant---Complainant had directly charged a single accused for the murder of her son---Substitution by a mother leaving the actual culprit was a rare phenomenon---F.I.R. was lodged with a delay of (only) one hour due to rain because of which the dead body had to be shifted from the scene of occurrence, in such circumstances there was no room for consultations or deliberations by the complainant---Occurrence was a daylight occurrence and parties were co-villagers known to each other and had a previous blood feud, hence there was no question of misidentification---Recovery of an empty and blood-stained earth and garments from the scene gave further support to the complainant's version---Accused was arrested after a lengthy absconsion of more than a year---Accused was prima facie connected with the commission of the offence, which fell under the prohibitory clause of S. 497(1), Cr.P.C.---Accused was refused bail accordingly.

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

----S. 497---Bail application---Prosecution evidence--- Assessment of--- Scope--- Evidence of prosecution could not be tested in depth at bail stage, and only tentative assessment was to be made.

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

----Ss. 173 & 497---Bail---Police opinion---Whether binding on court---Courts were not bound by the ipse dixit of police, rather court had to formulate its own opinion in light of the evidence available on record.

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

----S. 497---Bail, refusal of---Absconsion of accused---Effect---Fugitive from law lost some of his normal rights, such as procedural as well as substantial rights--- Bail may be declined on the basis of abscondence, irrespective of the merits of the case.

Hamyun Khan Wazir and Abdur Rasheed Khan Marwat for Petitioner.

Faqir Mahboob-ul-Hameed for Respondents.

Qudratullah Gandapur Assistant Advocate General for the State.

Date of hearing: 19th May, 2014.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--Having unsuccessful in obtaining bail from the two courts below the accused/petitioner, Azizur Rehman, involved in case F.I.R. No.114, dated 13-3-2013, under section 302 P.P.C. of Police Station Ghazni Khel, Lakki Marwat, has moved this further application through his counsel for the same relief.

2.The allegations against the accused/petitioner, as per F.I.R., referred to above, are that Mst. Din Bibi widow of Din Shah aged about 50/55 years; at the Baithak of Saadullah Khan situated at Taja Zai, reported the matter to Habibur Rehman Khan ASI, on 13-3-2013 at 16.30 hours, to the effect that on the eventful day, she along with her son Suleman Shah after Zohar Prayer, left for Adda Tajazai for the purpose of buying house hold articles, at about 15.30 hours, when they reached near forest office situated at Tajazai Adda, at road side, accused Azizur Rehman armed with Pistol appeared and with the intention to commit Qatl-e-Amd started firing at her son, resultantly, he was hit and fell down. Accused after the occurrence decamped from the spot. When she attended her son, he was taking his last breathes and died at the spot. Due to rain, with the help of co-villagers, dead-body was shifted to the Baithak of Saadullah. Motive for the occurrence alleged by the complainant was previous blood feud. The report of complainant was reduced in shape of murasila, which was sent to the Police Station Ghazni Khel, through Constable Inamunah No.370, which was culminated into registration of above-mentioned F.I.R.

3.Learned counsel for the accused/petitioner argued that the report has been lodged after consultation and deliberation with a considerable delay; that medical report contradicts the report of complainant; that the deceased himself was hardened and desperate criminal; that no independent witness is available; that abscontion could not come in the way of bail, when otherwise on merits the accused/ petitioner is entitled for the concession of bail; that the I.O. has alleged another story, which contradicts the complainant's version, hence, in order to ascertain that which one version is correct, the instant case needs further probe into the matter and the case of accused/petitioner falls under section 497(2), Cr.P.C. and he is entitled for the concession of bail.

4.On the other hand learned counsel for the complainant vehemently rebutted the arguments advanced by learned counsel for the accused/petitioner and contended that the complainant/eye-witness has directly charged single accused/petitioner for committing Qatl-e-Amd of deceased Suleman Shah by firing at him in promptly lodged F.I.R; that it is a daylight occurrence, and the parties are known to each other, hence there is no question of misidentification; that a young son has been killed before the eyes of a mother/ complainant with the motive of previous blood feud, hence, substitution of real culprit or false implication is rear phenomenon; that an empty of .30 bore pistol and blood- stained earth and pebbles recovered from the spot; that medical evidence fully supports the prosecution version; that ipsi dixit of police is not binding on the Courts; that the accused/ petitioner remained absconder for sufficient time; that trial has been commenced, as such he is not entitled for concession of bail.

5.I have heard arguments of learned counsel for the parties, Asstt: A.G. for the State and perused the record with their valuable assistance.

6.Perusal of the record divulges that the occurrence took place on 13-3-2013 at 15.30 hours, whereas the report has been lodged at 16.30 hours, with a delay of one hour. The contention of learned counsel for the accused/petitioner that this

delay has been consumed in consultation and deliberation is not worth consideration, as bare reading of F.1.R reveals that the occurrence took place away from the house of complainant, when the deceased accompanied his mother was going towards Adda Tajazai, and after the occurrence, due to rain the dead- body was shifted to the Baithak of one Saadullah, hence, there is no room for consultation and deliberation. The substitution of by a mother/complainant leaving the actual culprits is also rare phenomenon. Further being day light occurrence. The parties being co-villagers and having previous blood feud known to each other, hence, there is also no question of misidentification.

7.Mst. Din Bibi, complainant directly charged single accused/petitioner for murder of her son Suleman Shah by firing at him with .30 bore pistol and the recovery of an empty, blood-stained earth, and blood-stained garments gave further support to the complainant's version. When all these material pieces of evidence taken in juxtaposition, a prima facie case is made out against the accused/petitioner. The points urged at the Bar by learned defence counsel, if taken into consideration and any view is expressed thereon by this Court, it would not only touch the merits of the case, but would also prejudice the case of either side, which has time and again been discouraged and disapproved by the Superior Courts. The evidence of prosecution cannot be tested in depth at bail stage, only tentative assessment is to be made.

8.There is another police report available on record, which reveals that on the same time firing in between two parties was in progress and since the deceased was drug peddler, therefore, he may be killed by some body else. Perusal of the report shows that the police officials deputed near the Adda Tajazai Police Post, were not present at their duty, due to which accused could not be arrested at the spot and on explanation it was replied in shape of report that it was firing between the two groups. Further this report is not supported by any documentary or oral evidence. It is settled law that Courts are not bound by the ipsi dixit of police. Rather it can formulate its own opinion, in light of the evidence available on record. Hence contention of learned counsel for petitioner that there are two different versions is not based on sound reasons and accused/ petitioner cannot get its benefit at bail stage.

9.After registration of case petitioner did not surrender, due to which proceedings under sections 204 and 87, Cr.P.C. were initiated and consequently challan under section 512, Cr.P.C. was submitted, and statements of eight P.Ws. were recorded in his absentia and on 27-11-2013, he has been declared as Proclaimed Offender. The occurrence took place on 13-3-2013 whereas accused was arrested on 9-4-2014 after a long absconsion of more than a year. It is settled principle that a fugitive from law loses some of his normal rights, such as procedural as well as substantial and bail may be declined merely on the basis of abscondence, irrespective of the merits of the case.

10.For the reasons discussed above, on tentative assessment of the record, the accused/petitioner is prima facie connected with the commission of offence, which falls under the prohibitory clause of sec-tion 497(1), Cr.P.C., hence in the circum-stances, the present accused/petitioner is not found entitled for the concession of bail. Resultantly, this petition stands dismissed.

MWA/338/P Bail refused.