MUHAMMAD FIAZ Versus THE STATE

After the rejection of his bail from the two Courts below the petitioner has approached this Court for his release on bail in a case registered vide F.I.R. No. 1194, dated 26‑12‑1992, Police Station Haripur under section 302/34, P.P.C.

2, Khurshid s/o Muhammad Bashir on 26‑12‑1992 reported that on the preceding day his brother Khan Afsar had gone to Sarai Saleh to offer `Jumma' prayers but did not return till evening and as such search was made and on the following day i.e. on 26‑12‑1992 his dead body was found in a graveyard. The motive as given in the FIR was that about 8/10 days prior to the occurrence the deceased had disclosed that Dildar resident of Malikiar had promised to give him the currency‑making machine for which he had paid him Rs. 5,00,000. On his demand for the return of amount he threatened him of dire consequences. Consequently a `Jirga' consisting of complainant, Arshad, Tika Khan and Tariq also approached Dildar for the return of the amount but he refused to entertain the demand for which reason his brother was done to death by Dildar and his brother.

3. Learned counsel for the petitioner contended that the occurrence is an unwitnessed one as it had taken place during night hours in a graveyard and there is no direct evidence connecting the accused‑petitioner with the commission of the offence. He further contended that the petitioner being the brother of Dildar accused, has been implicated in the offence. He submitted that the petitioner was foot constable and during the night between 25‑12‑1992 and 26‑12‑1992 he was on duty as guard in Civil Hospital, Abbottabad, therefore he has falsely been involved. He also referred to the police opinion recorded in `Zimni' dated 26‑4‑1993 wherein the Inspector C.I.A. has absolved the petitioner for committing the crime, and that it was rumoured that the deceased has committed suicide. In view of the above the petitioner is entitled to be released on bail.

3. Opposing the aforesaid contentions, the learned Assistant Advocate -General vehemently argued that the petitioner has been charged in the FIR alongwith his brother for the commission of the offence. He referred to the statements of Ghulam Asghar and Muhammad Bashir recorded under section 161 Cr. P.C. who have given a detailed narration of the events that had taken place prior to the occurrence. He submitted that in first instalment Rs.3,50,000 were paid to Dildar accused who also demonstrated the making of the currency from the machine which was to be sold to the deceased and thereafter Rs.1,50,000 were paid and a colourable police raid was arranged by the petitioner so as to grab that amount. He also referred to the statements of Arshad and Tariq Mahmood who have also implicated the petitioner for arranging colourable raid in the Baithak of Dildar when Rs. 1,50,000 were paid by the deceased, and it was said that, that amount has been taken by police raiding party which also included the petitioner. He further stated that the petitioner and his brother have committed the murder in a very planned and calculated manner in order to grab the money of the deceased as such the petitioner is not entitled to. the concession of bail.

4. After hearing the learned counsel for the parties and going through the record of the case I am not inclined to allow the concession of bail to the petitioner, for, he has been actively participating in whole of the `drama' and he was in the full knowledge of very event that had taken place prior to the actual commission of the offence. The record also reveals that when the demand for the return of the amount was made the deceased was threatened of dire consequences and was ultimately done to death for the aforesaid motive. As far as plea of alibi is concerned, the copy of duty roster makes it highly doubtful as the dates have been tampered with thereon. Moreover the duty of the petitioner was allegedly from 12‑00 hours to 03‑00 a.m., and since the exact time of offence has not been given in the FIR therefore, the petitioner cannot draw any premium from this plea. Likewise the police opinion cannot be given any undue importance as it has no legal binding force. The law has prescribed the procedure that when upon investigation it appears to the officer incharge of the police station or the Investigating Officer that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to Magistrate, they can release him on his executing a bond, with or without sureties. If the Investigation Officer had formed absolute opinion that there was no evidence or reasonable grounds of suspicion against him, he could invoke the jurisdiction under the relevant provision of law. Since he failed to exercise the power conferred by law, his mere opinion has no legal sanction. At this stage the petitioner is not entitled to the concession of bail, therefore, this petition is dismissed.

N.H.Q/1479/P Bail refused.