2003 PLP 2160 (YLR)

The facts giving rise to the present application are that on 26-3-2002 the complainant A.S.-I., Israr Ahmed Khoso of Police Station, Sadar Jacobabad was on patrolling duty alongwith his subordinate staff. At about 1-00 p.m. they reached link road leading towards Baqapur near the village of Atur Bhangar. He was informed by persons that some unknown persons with intention to commit robbery from Muhammad Ibrahim and his son Budhal Khan had caused injuries to them. The police found one person lying injured and unconscious whose name was Budhal Khan and other was lying dead, whose name was Muhammad Ibrahim. The injured and deceased were sent to hospital. On the third day of the incident the injured regained his sense. He disclosed the facts to P.W. Ahmed Ali by stating that he and deceased were on motorcycle when the present applicant Sikandar armed with T.T. pistol and co-accused Shakoor armed with KK and Zafar armed with lathi tried to snatch the motorcycle, but on their resistance the accused fired at them, therefore, they received injuries. The police had recorded the statements of P.Ws. Budhal Khan and Ahmed Ali on 5-6-2002 after more than two months of the incident. On 18-6-2002 both the witnesses were produced before the Magistrate for recording their statements under section 164, Cr.P.C. where their statements were recorded in which they gave similar facts. The applicant was arrested on 12-6-2002. A T.T. pistol was secured from his possession. The police also secured empties from the wardat. The T.T. pistol and empties have been sent to Ballistic Expert for examination and report, but so far no report has been received by the prosecution. After completing the investigation, the case was challaned in the Anti-Terrorism Court where the applicant moved a bail application, but the same was dismissed, hence the present application. The learned Advocate for the applicant has stated that the name of the applicant is not mentioned in the F.I.R.; that the statement of injured, who is the only eye witness in the case has been recorded after more than two months of the incident; that he disclosed the facts to P.W., Ahmed Ali after three days of the incident, but the police did not record the statement of the witnesses, therefore, it has created doubt in veracity of their statements. He has further stated that there is no other evidence connecting the applicant with the commission of this crime, therefore, the applicant is entitled for the concession of bail. He has relied upon the following case-law:--

1. Muhammad Yousaf v. State (2002 PCr.I.J 2931. (2) Abdul Majeed v. State (2002 PCr.LJ 844). On the other hand, learned State counsel has, stated that the injured P.W. Budhal, who is only eye-witness has implicated the present applicant with the commission of this, crime by assigning special role to him of causing injuries to the deceased and the witness; that the crime weapon viz. T.T. pistol has been secured from the possession of the applicant and that the delay in recording of statements will not affect the veracity of the witnesses, therefore, he opposed to the grant of bail. We have given due consideration to the arguments and find that the statement of injured witness Budhal Khan was recorded after more than two months of the incident. From the statement of P.W. Ahmed Ali it is clear that the injured narrated the facts to him after three days of the incident. But it is surprising to note that he neither went to police station and disclosed the said facts to the police nor the medical officer informed the police that the injured regained his sense, therefore, his statement should be recorded nor the police took pains to go to the hospital to inquire about the condition of the injured so as to record his statement, which could have put light upon the facts and involvement of the accused who had committed this crime. The Investigating Officer very well knew that the injured was admitted in hospital in unconscious condition and fie did not know as to how the incident took place and by whom. He could not get such information from the wardat, therefore, he himself lodged the F.I.R. against unknown culprits, as such, it was his duty to have ascertained the condition of the injured in the hospital for obtaining the information about the incident and names of culprits. Furthermore, the P.W. injured in his statement has stated that after his discharge from the hospital he went to Quetta for rest purpose. Even injured after discharge from hospital did not go to the police station for recording his statement. It appears that the delay in recording the statement under section 161, Cr.P.C. has riot been explained at all in this case, which apparently affect the case of the prosecution. However, these points are to be thrashed out at the time of trial, but a doubt has been created in the 'case of the prosecution. It is well-settled principle of law that an unexplained and unproved explanation of delay in recording the statement of witnesses would affect the veracity of statement of such witnesses and are required to be ruled out of consideration. A reference is invited to a ease of Saeed Muhammad Shah v. State reported in 1993 SCMR 550 and at page 571, it has been observed as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation. In the case of Sikandar v. the State (PLD 1963 SC 17) there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eye witnesses and Investigating Officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence of that eye witness was viewed with doubt. In the case of Ismail and others v. The State (1983 PCr.LJ 823) evidence of witnesses was ruled out of consideration on the (round that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v. Kala and another (PLD 1964 SC 26), evidence of witness was held to be not reliable for the reason of patent doubt as to the tine as he first appeared before the police for his statement. " It is further pointed out that in a case of Elahi Bux v. State (1972 SCMR 683) the Hon'ble Supreme Court of Pakistan granted bail to an accused person; after suspending hip sentence, who was convicted for murder of five persons alongwith six other co -accused persons, on the ground that allegation of abetment against the accused was levelled by the P.Ws. before the police after one and half month of the incident and having no motive. Following the above dictum and in the circumstances of the present case, it appears that there are reasonable grounds to believe that the applicant is entitled for the concession of bail, therefore, bail is granted to the applicant in the sum of Rs. two lacs on furnishing solvent surety with PR bond in the like amount, to the satisfaction of the trial Court. However, if the prosecution collects the Ballistic Expert Report, then they are at liberty to move for cancellation of bail, in the light of said report. The application is allowed at this stage. H.B.T./S-296/K Bail granted.