Muhammad Umar and another V. The State,

2017 P Cr. L J 1009 [Balochistan] Before Zaheer- ud-Din Kakar, J MUHAMMAD UMAR and another ---Applicants Versus The STATE---Respondent Criminal Bail Application No. 47 of 2017, decided on 13th March, 2017. (a) Criminal Procedure Code (V of 1898) --- ----S. 497--- Bail--- Appreciation of evidence --- Scope --- Deeper appreciation of record at bail stage could not be gone into---Only a tentative assessment was to be made just to find out as to whether the accused persons were prima facie connected with th e commission of the alleged offence or not. (b) Criminal Procedure Code (V of 1898) --- ----S. 497 ---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention--- Bail, refusal of ---Prosecution case was that the accused persons along with co- accused had fired at the complainant party, as a result of which, one person had died while four persons sustained severe injuries ---FIR against accused persons was lodged promptly ---Specific role of firing at the deceased an d injured was attributed to the accused persons ---Record showed that seven persons armed with deadly weapons had made firing, due to which one person died at the spot and four persons sustained grievous injuries ---Circumstances suggested that it could not be considered that each and every person was to be isolated and be taken separately for his own misdeed ---Loss having been caused in one gathering, all the participants were to be taken into count ---FIR as well as statements of the injured persons recorded under S. 161, Cr.P.C. and the statements recorded before the court placed the accused persons and co- accused persons in frontline of the case ---Case had fallen within the prohibitory clause of S. 497, Cr.P.C. ---Circumstances established that accused perso ns were involved in the commission of offence ---Petition for bail was dismissed in circumstances. (c) Criminal Procedure Code (V of 1898) --- ----S. 497--- Bail---Principle ---Observations made in bail matter were tentative in nature and were not to be consi dered during trial of the accused. Shuaib Mehmood Butt v. Iftikhar -ul-Haq 1996 SCMR 1845 rel. Sardar Ahmed Haleemi for Applicants. Habibullah Gul, A.P.- G. for the State. Date of hearing: 19th March, 2017. JUDGMENT ZAHEER -UD-DIN KAKAR, J. ---Applicants Muhammad Umar and Ghulam Siddique seek post -arrest bail in case FIR No.3 of 2015, dated 29.05.2016, registered under sections 302, 324, 34, P.P.C. with Levies Thana, Garesha, District Khudzar.

2. Plea of post -arrest bail of the applicants did not find favour with the Sessions Judge, Khuzdar, who dismissed his bail application No.312 of 2016 vide order dated 9th December, 2016, hence the instant application.

3. The case of the prosecution, as set up in the FIR is that on 29.5.2016 at about 9:30 a.m., the co mplainant Haji Muhammad heard firing and after a short while he was informed that accused/applicants along with co -accused persons had made firing upon Shakir Hussain son of Najib -ur-Rehman, Abdul Rahim, Asghar, Shakir and Muhammad Ashraf with regard to a land dispute and as a result, the complainant's brother namely Muhammad Ashraf had died, while the others namely Shakir Hussain, Abdul Rahim, Asghar and Shakir son of Sakhi Dad sustained severe injuries.

4. Learned counsel for the applicants contended that the applicants are innocent and have not committed any offence; that in the FIR no specific role has been assigned to the applicants and previously they were not involved in any case; that the applicants have been shifted to judicial custody; that the sta tements of eye -witnesses have been recorded by the trial Court and they, in their statements have not given any specific role towards the applicants, therefore, they are entitled for grant of bail.

5. Conversely, the learned APG vehemently opposed the bail application and stated that the injured eye -witnesses specifically implicated the applicant with the commission of alleged offence; that offence under sections 302, 324, P.P.C. fall within the ambit of prohibitory clause of section 497, Cr.P.C., therefore , the applicants are not entitled for concession of bail.

6. I have heard the learned counsel for the parties and have gone through the record available. It is a settled principle that at bail stage, deeper appreciation of the record cannot be gone into, but only a tentative assessment is to be made just to find out as to whether the applicants are prima facie connected with the commission of the alleged offence or not. In the instant case, I am of the considered view that the FIR against the applicants was promptly lodged, in which a specific role of firing at the deceased and injured was attributed to them. The scenario in the FIR shows that seven persons armed with deadly weapons made firing, due to which Muhammad Ashraf died at spot, whereas Shakir Hussa in son of Najib- ur-Rehman, Abdul Rahim, Asghar and Shakir son of Sakhi Dad sustained grievous injuries, therefore, it cannot be considered that each and every person is to be isolated and be taken separately for his own misdeed. In such situation all the l oss, which has been caused in one gathering vis -a-vis all the participants are to be taken into count, while deciding the innocence of an accused or otherwise. The picture formed from the FIR as well as statements of the injured persons recorded under section 161, Cr.P.C. and the statements recorded before the trial Court, places the applicants and co-accused persons in frontline of the case. Since there appears common intention, hence, case falls within the prohibitory clause of section 497, Cr.P.C. as one person was murdered and other four persons were severely injured. In such circumstances, no leniency can be observed.

7. Before parting with the case, this Court finds it necessary to remind the trial Court that the observations rendered by the High Court while disposing of bail applications are not to be considered during trial of the accused. In this regard the Apex Court of Pakistan in "Shuaib Mehmood Butt v. Ifiikhar -ul-Haq" (1996 SCMR 1845) has rendered clear guidance, which is to the effect that: "However we would like to point out in no uncertain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law at the time of disposal of the case, which of course it is needless to say, is the function of the trial Court."

8. Accordi ngly, for the reasons stated herein -above, the present application is dismissed. JK/25/Bal. Application dismissed.