SHARIFULLAH vs DOCTOR KHAN and another

' Accused-respondent No,1 Doctor Khan has been allowed bail by the learned Sessions Judge, Lakki vide his order dated 4-12-2002, in case F.I.R. No,363, dated 10-10-2002, under sections 302/324/34, P.P.C. Of Police Station Naurang and now through the present petition, complainant Sharifullah seeks cancellation of his bail.

2. According to the F.I.R., on the day of occurrence, the complainant alongwith his father Haji MoSam Khan, the deceased, went from their village to village Nar Qulli Khan in order to inquire about the latest position of elections from Din Muhammad tenant (Bhaiwal) where it transpired that he had gone to village Nar Hakim Khan, on which, both the complainant and his father started for there. It was about 19-30 hours when they reached the spot and in the light of the bulb, the complainant recognized that Hamidullah, co-accused and Doctor Khan, the present accused- respondent, duly armed with Kalashnikovs, were present there and on seeing the complainant and his father, they started firing at them, with which, the father of the complainant received injuries and died on the spot. During the firing of the accused, out of the persons present on the spot, P.W.

Pehlwan Mukhtiar also received injuries. Motive for the offence was stated to be blood feud enmity of 12/13 years old.

3. I have heard Yaqoob Khan, Advocate, learned counsel for the petitioner Mr. Zahid Yousaf Qureshi, Advocate for the State and Mr. Sultan Shehryar Khan, Advocate, learned counsel for the accused- respondent and have also perused the record.

4. In support of the petitioner, learned counsel for the petitioner contended that the accused- respondent and his co-accused are directly charged in promptly lodged F.I.R. For the murder of the deceased and causing injuries to Ghulam Subhan alias Pehlwan; that the prosecution version is not only supported by P.W. Ghulam Subhan but also by the medical evidence on record and the recoveries of 9 empties of 7.62 bore and while granting bail to the accused-respondent on the plea of alibi, the learned Sessions Judge has committed a grave mistake as it was not the proper stage either to undertake deep appreciation of evidence on record or to allow, in view of evidence on record, the plea of alibi. In support of his arguments. He placed reliance on 2003 SCM R 68.

5. On the other hand, learned counsel for the accused-respondent contended that on the day and time of occurrence, the accused-respondent being polling agent of Anwar Saifullah, a candidate for NA-27 Lakki Marwat, was present at the polling station and in support of the same, the Investigating Officer has examined six witnesses namely; D.Ws. Kamran, Saifullah, Amin Jan, Adil Khan, Hazrat Muhammad and Hidayatullah who in their statements under section 161, Cr.P.C. Have confirmed that on the day and time of occurrence, the accused-respondent was present in the polling station. The learned counsel for the accused-respondent also produced a copy of authority letter undated by Anwar Saifullah authorizing the accused-respondent to work as his polling agent and further contended that as per F.I.R., the occurrence took place at 19-30 hours while the report was lodged in the Emergency Room of Civil Hospital, Naurang at 21-30 hours whereas medical report of P.W. Ghulam Subhan shows that he reached the hospital at 8-45 p.m., or in other words, there was a delay of 45 minutes in the lodging of the F.I.R. Which the prosecution has failed to explain the same, resulting in the false implication of the accused-respondent after due deliberations.

6. The arguments of learned counsel for the accused-respondent are without force for the reasons firstly; that the authority letter by Anwar Saifullah in favor of the accused-respondent is undated and the same is not supported by the statement dated 1-11-2002 under section 161, Cr.P.C. Of Khalid Wahab who was Presiding Officer of the polling station and the statements of six D.Ws. Recorded under section 161, Cr.P.C. Majority of whom, reportedly closely related to the accused-respondent, were recorded on 31-10-2002 or in other words, after 21 days of the occurrence, as such, the plea of alibi taken by the accused-respondent is yet to be proved at trial and secondly; that the delay of 45 minutes cannot be considered at this stage for the reason that deep appreciation of evidence is not allowable at bail stage under the law. In the case reported in 2003 SCM R 68, their Lordships of the Honourable Supreme Court of Pakistan observed that, "at a stage of admitting to an accused on bail, the Court should not stamp the prosecution witnesses who have recorded this statement, promptly to be false witnesses and accept the statements of the defence witnesses whose statements are recorded after considerable period by the Investigating Officer from the happening of the accident to conclude that the respondent is innocent. Therefore, the reason prevailed upon the learned High Court as well as Sessions Judge, Chakwal are not acceptable, being contrary to the principle of law laid down by this Court as it has been pointed out hereinabove."

7. In the present case, the accused-respondent and his co-accused are directly charged in the F.I.R. The prosecution version is not only supported by the statement of P.W. Subhan alias Pehlwan who carry the stamp of injury received at the time of firing but is further supported by the medical evidence on record and recovery of 9 empties from the spot. Reasonable grounds, therefore, exist to believe that the accused-respondent is involved in the offence and the plea of alibi taken by him is yet to be proved at trial.

8. For the reasons stated above, this application is accepted and the to accused-respondent by learned Sessions Judge, Lakki is recalled. He is present in Court and taken into custody in order to face his trial. He shall be produced before the trial Court as and when required. As, investigation in the case is almost complete, accordingly, the prosecution is directed to submit the challan against the accused-respondent in Court within two weeks from today and the learned trial Court is directed to conclude the trial of the accused-respondent and his co-accused within a further period of four months and on its failure, the accused-respondent can approach this Court again for bail, if so advised.

Bail cancelled.