RAB NAWAZ and another Versus THE STATE and another

Rabnawaz and Mubarak Shah petitioners stand involved in case F. I. R. No.35 dated 13-5-2004 registered under sections 302/324/34, P. P. C. at Police Station, Miryan, District Bannu. The petitioners have moved instant application under section 497, Cr.P.C. for their release on bail on refusal of the same by the Courts below vide orders, dated 30-6-2004 and 16-7-2004 respectively.

The allegations against the petitioners are that they on 13-5-2004 at 20-45 hours near mosque Sher Azad situated in village Tappi Ghulam Qadir, sharing their common, intention with their co-accused, fired with their pistols at the complainant party as a result of which, Azmatullah Jan got hit and expired on the spot whereas complainant and his uncle escaped unhurt.

3. Arguments of Malik Muhammad Jehangir, Advocate for the petitioners and Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General assisted by Mr. Gauhar Zaman Khan Kundi, Advocate for the complainant have been heard in the light of material on record.

4. The bail has been sought on the ground that according to medical report, deceased received single fire-arm injury for which two persons are charged and it is yet to be determined at trial as to why caused injury to the deceased; that Makhairullah alias Mehrgul who a alleged to have received injuries at the spot, did not charge any of the petitioners for causing such injuries and that identification of the culprits is highly doubtful. On the force of these submissions, it is alleged that the case of the petitioner needs further inquiry as contemplated under section 497(2), Cr.P.C. entitling petitioners for the grant of bail. Reliance has been placed on Amir v. The State PLD 1972 SC 277:

5. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate -General and learned counsel for the complainant bitterly opposed the bail and contended that prosecution is in possession of adequate evidence to connect the petitioners with the commission of crime and the material on record clearly tend to suggest that there are reasonable grounds to believe that the petitioners are guilty of the offences charged with which fall within the prohibitory clause of section 497, Cr.P.C.

6. To consider the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. If it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds but there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C

7. It would be seen that lit matters concerning bail, the exercise carried out by the Court is a preliminary one and is restricted to a tentative sifting of the evidence on record opposed to an elaborate sifting of the same. The Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail.

8. Applying the above principle to the case in hand, it would be seen that the alleged incident took place on 13-5-2004 at 20-45 hours whereas the report was lodged at 21-15 hours. Question regarding mistaken identity, false, implication on mere suspicion, alleged conflict between ocular account and medical evidence or that from whose fire shot deceased got hit, are issues which should safely be left to the trial Court to appreciate it at the trial itself and not at the bail granting stage. In this regard, reference can be made to Muhammad Sharif v. Shafqat Hussain 1999 SCMR 338 and Abdul Hai v. The State 1996 SCMR 555. In the instant case, the petitioners have nut been able to successfully demonstrate the existence of circumstances justifying grant of bail. The application fails which a whereby dismissed. Bail refused.

H.B.T./247/P Application dismissed.