P L D 2004 Karachi 520 (PLP)

AMIR HANI MUSLIM, J.

The applicant is facing trial along with the other accused before the Anti Terrorism Court No.III, Sukkur and Larkana Division at Sukkur, in, Special Case No.37 of 2003 under sections 302, 365/A, 451, 148, 149, P.P.C read with section 3/4 Explosive Act and section 7 ATA 1997, in crime No.54 of 2002 registered with Police Station, Bahoo Khoso. It appears from the record that the applicant and other accused had approached the learned trial Court for grant of bail, which was declined by the order dated 9-2-2003. The applicant, therefore, has approached this Court to seek his bail.

2. The brief facts of the prosecution case as disclosed in the F.I.R and incorporated in the order of the learned trial Court are "that on 6-12-2002, complainant lodged a report at Police Station Bahoo Khoso, alleging therein that he alongwith his father Abdul Rasool and brothers Liaquat Ali, Shamsuddin and maternal uncle Muhammad Ayub Noonari used to reside together. Their houses are Paka built and from northern side there is outer door. On the night of incident i.e. 5-12-2002 they were sitting into their house. The electric bulb were on. A about 9-30 p.m., 10 persons entered into their house amongst them six accused were identified by the complainant party to be

1. Haqnawaz, 2: Abdul Haque both sons of Ghulam Sarwar Khoso,

3. Asadullah s/o Fateh Muhammad Khoso,

4. Muhammad Pariah s/o Pir Bux` Merhato all were armed with klashnikovs,

5. Dhani Bux s/o Azizur Rehman Khoso armed with Rocket Launcher,

6. Hakim s/o Behran Khoso armed with klashnikov while rest four culprits were unidentified amongst them two were armed with Rocket Launchers and two were with klashnikovs. They were seen by the complainant party on the light of bulbs as their faces were opened. They challenged the accused persons thereafter it is alleged that the accused who were armed with Rocket Launchers went outside the house and pointed their Rocket Launchers at the complainant namely Shamasuddin in order to abduct him. Liaquat Ali brother of the complainant in order to get Shamasuddin released from the accused intervened on which accused Haqnawaz fired from Klashnikov at him, which hit Liaquat Ali. Accused Abdul Haque Khoso also fired from his Klashnikov, which also hit to Liaquat Ali on his lumber region, who raised cries and fell down. Accused Muhammad Pannah also fired at the complainant party and also directed them to remain silent. Accused Dhani Bux Khoso alongwith two unidentified accused also fired from Rocket Launchers at the complainant with intention to commit murder. Thereafter all the accused forcibly abducted away Shamasuddin towards the northern side for ransom. Liaquat Ali, brother of the complainant died there on the spot due to firearm injuries. Thereafter complainant informed police picket R.D.92 and other villagers tracked the footprints, thereafter returned back and lodged such report against the accused persons as stated above."

3. It appears from the record that after completion of the investigation, the police has submitted the challan against the applicant and other accused. The trial Court framed the charge against the applicant alongwith other accused for the offences punishable under sections 302, 365/A, 451,, 148, 149, P.P.C. read with S.3/4 of Explosive Act and section 7 of the ATA, 1997.

4. Mr. A.Q Halepota, learned counsel for the applicant has contended that the applicant was not named as one of the assailants in the F.I.R. He submitted that after the registration it the F.I.R. the complainant in his further statement recorded by the police under section 161, Cr.P.C, has named the applicant. According to the learned counsel even the further statement of the complainant recorded by the police on 6-12-2002 does not mention time. He, therefore, submitted that since the applicant has not been named in the F.I.R this itself was sufficient ground to enlarge the applicant on bail and any further statement under section 161, Cr.P.C. after the recording of the F.I.R was inadmissible in evidence.

5. Learned counsel has further contended that the object of further statement under the Cr.P.C. was to enable the complainant to clarify facts which required some explanation but if complexion of case was changed as regards the identity of the culprits then onus would be on the prosecution to cast away the same at trial. According to the learned counsel a Court for the purposes of bail would be persuaded to draw reasonable inference that guilt of person involved on the basis of further statement without rational explanation would calf' for further inquiry. In support of this proposition, Mr. A. Q. Halepota has relied on the cases of Shahzado v. State reported in PLD 2002 Karachi 402, Khalid Javed v. State reported in 2003 SCMR 1419 at page, 1433, 1434 and 1437 and Anees ur Rehman v. The State reported in PLD 2000 Lahore 110.

6. It was further argued by the learned counsel for the applicant that even the complainant in his further statement has not assigned any role to the applicant except that he has stated that the applicant was present on the place of incident with klashnikov. He submits that the complainant has not alleged in his further statement that the applicant had fired from the klashnikov which he was carrying. Mr. A. Q Halepota has contended that in such a case the applicant cannot be connected with the alleged offence as he was not assigned any role by the complainant.

7. It was further argued by Mr. Halepota that the father of the applicant Shah Bux son of Wali Muhammad had addressed two letters; one on 29-1-2003 anti the other on 16-12-2002 in which he has pointed out to the DPO, Jacobabad, that the S.H.O., Police Station Bahoo Khoso had arrested the applicant and was demanding Rs.50,000 for his release failing which the S.H.O., had threatened to challan the applicant in crime No-45 of 2002. He submitted that on such letters the DPO Jacobabad, had issued necessary instructions to the TPO, Thul, Mr. Halepota has submitted that the police had fully implicated the applicant as the father of the applicant had refused to meet illegal demand of the S.H.O., Police Station, Bahoo Khoso, Mr. Halepota has further submitted that the statement of the abductee was recorded one month after he escaped from the custody of the accused person for which no explanation has been given by the police. It was further submitted that in the 161, Cr.P.C. Statement of the abductee which was recorded on 17-2-2003, the abductee has falsely stated that he was released a day before recording of the statement though according to the police record the abductee slipped away from the custody of the accused on 17-1-2003 and was brought to the police station but he refused to give statement to the police on the ground that he was not in proper frame of mind and was not in good health. Mr. Halepota submitted that even the 161, Cr.P.C. statement of the abductee will not come in the way of the applicant as admittedly such statement was recorded by the police after lapse of one month for which no explanation has been given.

8. As against this, Mr. Rasool Bux Palejo, advocate, representing the complainant, has argued that not only the complainant but the other eyewitnesses examined by the police have named the applicant. He submitted that even the abductee in his 161, Cr.P.C statement which the police was avoiding to record in order to benefit the accused persons has stated that the applicant was on guard duty at the time when the abductee was in the custody of the accused persons. Mr. Palejo has submitted that the police has conducted dishonest investigation in the case with the sole object to benefit the accused persons in as much as there was nothing on the record to show that the police has ever approached the abductee to record his statement once he left the police station on 17-1-2003 except. that two entries in police diaries which reflect that a message was sent to the abductee who was not present at his residence. He submitted that the abductee himself went to the police station to get his statement recorded. The delay in examining the abductee by police was intentional to benefit the accused persons. He further submitted that even in the statement of the abductee, he has been shown to have stated that he reached home .a day before the date of recording of his statement which was 17-2-2003, which fact was contrary to the police record. He further submitted that the two letters addressed to D.P.O., Jacobabad, which have been placed on record by the applicant, would reflect how the applicant and his family members were managing, fabricating and procuring material to help the applicant and other accused persons. The applicant was arrested in March much after the letters addressed by his father.

9. Mr. Palejo has submitted that no case for grant of bail has been made out in the face of the material available on record and applicant was not entitled to the grant of bail.

10. Mr. Habib Ahmed, learned AAG, while adopting the arguments of Mr. Rasool Bux Palejo, has submitted that both the letters referred to hereinabove were not signed by the DPO, Jacobabad, which fact he had confirmed from the concerned Officer. He submitted that the instructions contained on these letters by the. D.P. O, Jacobabad, were never issued by the D.P.O, and in fact even the entry numbers (outward number) as reflected on the letters were fake. The learned Assistant AG has opposed the bail. .

11. We have heard the learned counsel and have perused the record. In the present case besides the complainant Shaukat Ali Noonari, there are three other eyewitnesses, namely, Abdul Rasool father of the complainant, Muhammad Ayub, brother-in-law, and Shamsdin, the abductee, have named the applicant and implicated him. On our query from the applicant's counsel as to why would the eyewitnesses implicate A the applicant, the learned counsel replied that it was on account of enmity between the parties. We with profound respect do not accept this explanation as such material is not available on record, which could substantiate that the parties were inimical against each other. On the contrary, the two letters which were addressed by the applicant's father before the arrest of the applicant reflect that the father of the applicant had never shown grievance against the complainant or any of eye witnesses. The letters were directed against the SHO of Police Station Bahoo Khoso, who was allegedly demanding money for release of the applicant. There is nothing on record to show that plea of enmity was ever taken by the applicant's father.

12. The argument of the learned counsel for the applicant that name of the applicant was not disclosed in the F.I.R. would entitle him for grant of bail is also misconceived. This may be a ground in some cases when no other incriminating material is on record but it cannot be held as sole ground on which the applicant can be enlarged on bail when there was sufficient incriminating material against the applicant which, prima facie, connects him with the offences for which he was charged. In the case of the nature where rocket launchers and klashnikov were alleged to have been used killing one person on the spot while the other was abducted, recoveries of the empties of klashnikov and the pieces of the rocket launchers were effected, the non-disclosure of the name of the applicant in F.I.R was insignificant, when the same day the complainant has named him besides the eyewitnesses implicating the applicant. The case of the applicant does not fall within the phrase of 'further inquiry' in the face of material available on record.

13. We are also not persuaded by the arguments of the learned counsel of the applicant that the applicant was not assigned any role in his further statement. The presence of applicant with klashnikov on the place of incident with accused is sufficient to qualify the rigor of section 34, P.P.C and no specific role is required to be assigned in order to connect the applicant with the alleged offences. Moreover, not only C the complainant but other eyewitnesses have also implicated the applicant, therefore, such argument of the learned counsel for the applicant that the applicant did not participate in the commission of the offence does not appeal to reason.

14. The delay in examining the abductee is hardly a ground to grant bail to the applicant as the applicant was otherwise implicated by the complainant and the other eyewitnesses who prima facie have no enmity with the applicant. Even the abductee who has stated that the applicant was on guard duty has also enmity with the applicant. The case-law cited by the learned counsel of the applicant is of no help as all these cases were distinguishable on facts. We, therefore, are of the considered view that the applicant in these circumstances is not entitled to be enlarged on bail and accordingly application merits dismissal.

15. We are perturbed to notice that despite of the challan having been submitted much before, the trial Court has not proceeded with the matter. These matters have to be decided expeditiously and we direct the trial Court to decide this matter in accordance with law preferably within 3 months. The A.-G. Office shall return the police papers immediately to avoid any delay on the part of prosecution. Our observations made in the order are tentative and shall not influence the trial Court while giving its judgment on merits in accordance with law. N.H.Q/M-71/K Bail refused.