MUHAMMAD SALEEM Versus THE STATE

Khawaja Wali Muhammad complainant, father of Azhar Iqbal deceased, runs a Cloth‑shop in Kashmiri Bazar Mansehra. On 7‑9‑2000 at 8 p.m., the complainant was present in his shop, when an unknown person having muffled his face, clad in black clothes and duly armed with .30 bore pistol, passed in front of the shop of the complainant, entered into the shop of the deceased, adjacent to the shop of the complainant and resorted to firing, hitting Azhar Iqbal on the abdomen and chest. The injured was immediately rushed to D.H.Q. Hospital, Mansehra but he succumbed to his injuries and expired before the medical aid could be provided to him. The complainant, his sons, a servant namely, Shaukat and many others were stated to have witnessed the occurrence. The matter was reported to the police by the complainant in the. Emergency Ward of D.H.Q. Hospital, Mansehra and resultantly a case under sections 302/324/109/34, P.P.C. was registered vide F.I.R. No.717, dated 7‑9‑2000, at 8‑30 p.m.

2. On the following day of the incident, Wali Muhammad complainant and his sons Zaheer Iqbal, Zaffar Iqbal and Mazhar Iqbal' made supplementary statements wherein they charged Ali Asghar and his sons Muhammad Saleem, Muhammad Siddique and Muhammad Rafique for the commission of the offence, through a hired assassin. Zaheer Iqbai and Zaffar Iqbal also claimed having chased the culprit but according to them the culpril succeeded to disappear in a lane. They also stated that the culprit fired at them in order to foil their attempt to apprehend him in consequence whereof Zaffar Iqbal sustained injury on his leg. A dispute over eviction of a shop owned by the complainant party and occupied by the accused party as tenant, was stated to be the motive for the occurrence.

3. During the investigation of the case, certain crime‑empties of .30 bore and a Chaddar were recovered by the Investigating Officer which were sealed and taken into possession. The services of two tracker dogs were also requisitioned at the instance of the complainant. The dogs smelled the Chaddar and sat near Muhammad Saleem accused, in a parade conducted in the police station. The dogs were brought from Rawalpindi under the supervision of Tasawar Khan and Muhammad Ashraf Havaldars. The dogs were stated to be trained to probe into such‑like matters.

4. In view of the supplementary statements of the complainant and his sons, Ali Sher and his sons were arrested on 10‑9‑2000 from their shop in Kashmiri Bazar Mansehra. The case was initially investigated by the local police but subsequently the complainant made an application on 14‑10‑2000 to Inspector‑General Police, N.‑W.F.P., Peshawar expressing his dissatisfaction over the investigation with the prayer that the same be entrusted to the Crime Branch. The application was accepted and the investigation was transferred to Crime Branch The Crime Branch proceeded with the matter and submitted its report.

5 Ali Sher and his sons Muhammad Saleem and Muhammad Saddique moved an application in the Court of Senior Civil Judge/Judicial Magistrate, Mansehra for grant of bail. The bail application was allowed qua Ali Sher and Muhammad Siddique vide order, dated 23‑9‑2000 whereas the concession of bail was declined to Muhammad Saleem. Feeling aggrieved, similar application was filed before Additional Sessions Judge, Mansehra which was turned down vide order, dated 21‑11‑2000.

6. Muhammad Saleem petitioner, having failed to obtain' the relief of bail in the Courts below, has approached this Court for grant of bail by way of filing instant bail application (Criminal Miscellaneous No.392 of 2000). Khawaja Wali Muhammad, father of the deceased has also submitted an application (Criminal Miscellaneous No.393 of 2000) under section 497(5), Cr.P.C. seeking cancellation of bail granted to Ali Sher and Muhammad Siddique respondents vide order, dated‑23‑9‑2000. This order is proposed to dispose of both the matters.

7. Messrs Abdullah Jan Mirza and Saeed Akhtar, Advocates appeared on behalf of the petitioner whereas ‑Mr. Muhammad Ayub, Assistant Advocate‑General for the State assisted by Messrs Akbar Khan Swati and Ghulam Mustafa Swati, Advocates for the complainant, made submissions on behalf of the complainant. I have heard the arguments of learned counsel for the parties and have also gone through the case‑law cited at the Bar, in the light of the material on record.

8. Learned counsel for the petitioner, in support of the bail application, contended, inter alia, that the name of the petitioner does not find place in F.I.R. that F.I.R. is silent regarding claim of the sons of the complainant having chased the assailant in order to apprehend him; that belated supplementary statements made by the complainant and his sons on the following day of the occurrence without disclosing the source of information, do not implicate the petitioner with the guilt; that the essential ingredients to constitute conspiracy and abetment are conspicuously missing in the case; that the medical evidence and dimension of the injuries found on the person of the deceased clearly tend to suggest that the victim was done to death by two assailants using two different weapons; that smelling of a Chaddar recovered from a pathway through tracking dogs does not in any manner associate the petitioner with the crime; that the identification parade had not been conducted in accordance with law and that the case of the petitioner is at par with other co‑accused, who have already been admitted to bail and keeping in view the rule of consistency, the petitioner is also ,entitled for the same relief. To substantiate the pleas, reliance was placed on various rulings reported in 1997 PCr.LJ 1181 (Karachi), 1977 PCr.LJ 850 (Lahore), PLD 1996 SC 241, 1999 PCr.LJ 1323 (Peshawar), 2000 PCr.LJ 1171 (Peshawar), 1999 SCMR 1271 and PLD 1989 SC 633.

9. Conversely, the bail application has been opposed and it is contended that in view of the material brought on record the petitioner is prima facie associated with the crime in question and as such the concession of bail has been refused to him for valid arid cogent reasons. It has been further submitted that the submissions made on behalf of the petitioner touch the merits of the case and deep appreciation of evidence cannot be undertaken at bail stage. Adverting to the application for cancellation of bail it is urged that the prosecution has succeeded to collect sufficient evidence against the respondents implicating them with the guilt and as such they were not entitled for the relief of bail.. In support of the pleas so raised, reliance placed on 1996 SCMR 555, 1998 SCMR 496, 1997 SCMR 1293, 1'997 SCMR 445, 1982 SCMR 434, PLD 2001 Lah. 123, 1999 SCMR 1794, 2000 SCMR 1599, 1995 PCr.LJ 313 (Peshawar), 1988 PCr.LJ 214 (Peshawar) and PLD 1998 SC 621.

10. The bail under section 497, Cr.P.C. is refused if there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. But if it appears, at any stage of the investigation/inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail: It is true that in the instant case the petitioner is not nominated in F.I.R. lodged without loss of time by father of the deceased and an unknown person is charged for having taken life of the deceased but it is equally true that on the following day of the occurrence, supplementary statements were made by complainant and his sons which fully implicate the petitioner with the guilt. The medical evidence also supports the charge and detection by the Army dogs is also relevant at this stage. Most of the submissions raised on behalf of the petitioner go deep to the merits of the case and I do not feel inclined to touch these submissions at the stage of bail. It needs no reiteration and it is a settled law that deep appreciation of evidence cannot be undertaken at the stage of bail lest it may prejudice the case of any of the party at the trial. All such matters are left to be tried by the trial Court after taking into account the material brought before him. The case‑law cited by learned counsel for the petitioner is distinguishable and speaks of the different situation. It does not promote the case of the petitioner in any manner.

11. The petitioner is said to be entitled for grant of bail on the basis of principle of consistency. The submission made in this respect is devoid of substance, The role attributed to the petitioner is quite distinguishable from the role assigned to the 'remaining accused on bail. The principle of consistency cannot be made applicable in the case of the petitioner. It may be pertinently mentioned here that the petitioner alone was pointed out by the Army dogs who were requisitioned for the purpose of pointation and identification.

12. The petitioner is stated to be a heart patient. There is nothing on record in' support of the submission. Mere ailment or heart trouble constitutes no ground for grant of bail, when an accused person is prima facie linked with the crime and sufficient material is brought on the file in support of the accusation.

13. Adverting to the application for cancellation of bail granted to Sher Ali and his son Muhammad Siddique, I find that no extraordinary circumstance has been pointed out by learned counsel for complainant as may constitute‑an impediment in the way of granting bail to the respondents. The grounds given for grant of bail by the lower Court are cogent and convincing and the impugned order concerning grant of bail does not bear the imprint of j any illegality or irregularity on its forehead. It is settled proposition of law that consideration for the grant of bail and the consideration for the cancellation of bail are absolutely different. Once an accused person has been released on bail, his liberty cannot be interfered with lightly. Learned counsel for the complainant has not been able to convince me that the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

14. In view of what has gone above, it follows that the petitioner is I prima facie connected with the guilt and his case is not arguable for the purpose of bail. The application of 'the petitioner fails which is hereby dismissed and the bail is refused. So far as Sher Ali and Muhammad Siddique respondents are concerned, I find that they have been granted bail on solid grounds which hardly call for interference of this Court. The application of Khawaja Wali Muhammad complainant fails which is hereby dismissed Sand the bail granting order is maintained.

H.B.T./265/P Order accordingly: