1999 PLP 2836 (MLD)

Applicant Ali Sher son of Hidayat Ali has moved this bail application in Crime No.38 of 1994 Police Station B-section Sukkur, wherein he has beer, charged for an offence under sections 302 and 324, C.P.C. Briefly the case of prosecution is that on 11-4-1994 at 20.45 hours. SIP Shoukat Ali Mahat lodged an F.I.R. at Police Station B-section Sukkur wherein he stated that on 11-4-1994 at about 7.15 p.m he alongwith subordinate staff H.C. Muhammad Shareef constable Shahjahan, constable Ghulam Muhammad. constable Nabi Bux Gabol in police uniform duly armed proceeded from P. P New Pind vide entry No.7-1500 dated 11-4-1994 on foot when they reached a; Railway Engine Shed Colony at about 19-15 hours they heard fire-arm shots and therefore, rushed towards that directions and saw that P.C. Ali Sher of Railway Police Department was running towards south empty handed from his railway quarter while his brother Sardar Jiskani also came running. They entered inside the quarter and saw the women lying on the ground having fire-arm injuries and blood was oozing, out of them one was dead and the other was alive. One official rifle 7.62 China and live bullets in a cloth bag were also lying there. On enquiry Sardar Jiskani told them that both women are wives of his brother Ali Sher Jiskani, namely Mst. Yasmeen aged 20-21 years (dead) and injured Mst. Janat aged about 22 years. They saw Mst. Yasmeen who received injuries on her body at the back, abdomen, left breast and left arm blood was oozing. While Mst. Janat received injuries on her body at the left side of her abdomen and on her left arm, blood was oozing and she was unconscious. Sardar Jiskani told them that always there remain altercation in the house which caused anger to his brother Ali Sher who killed his wife Mst. Yasmeen and injured Mst. Janat with intention to kill her, with his official rifle and she became seriously injured. The official rifle and pocket of bullets were taken into custody and after usual proceedings dead body of Mst. Janat was sent for her treatment through P.C. Ghulam Muhammad to Civil Hospital Sukkur, therefore, he has came to report on behalf of the State against accused Ali Sher Jiskani that he has murdered Mst. Yasmeen with his official rifle with intention to kill her and injured Mst. Janat with intention to kill her due to domestic altercation. During the investigation of this crime the applicant approached the Sessions Judge, Sukkur for grant of his pre-arrest bail but the said application was dismissed by the learned Sessions Judge, Sukkur, by his order, dated 23rd, November, 1994, other application for pre-arrest bail being Criminal Bail Application No.514 of 1996 moved by the applicant before the learned Sessions Judge Sukkur was also dismissed on 4-11-1996. The accused was thereafter arrested on 25-8-1997 and after his arrest he moved another bail application which was dismissed by the Court of learned IVth Additional Sessions Judge, Sukkur vide his order, dated 9th February, 1998. It is contended by the learned counsel for the applicant that during the course of investigation statement under section 164, Cr.P.C. of both the eye-witnesses viz. Mst. Janat, the injured, and Sardar Ali Jiskani were recorded before the Mukhtiarkar and 1st Class Magistrate Sukkur and these witnesses have narrated a different story of the incident and not implicated the present applicant in any manner what so ever with the commission of this crime. Not only this but the Investigating Officer Amjad Mahmood on the basis of his investigation has recommended that disposal of this case in cancel class and in such circumstances this is a case for further enquiry and, therefore, the applicant is entitled for the concession of bail in this crime. Conversely Mr. Sher Muhammad Shar, learned A.A.-G. for the State has opposed the grant of this bail application and has submitted that there is overwhelming circumstantial evidence against the applicant which proves his involvement in the commission of this crime, therefore, the applicant is not entitled for the concession of bail. He further submitted that the applicant who himself is police constable, got issued official rifle and bullets from the Railway armoury on the false pretext of joining D.S.P. on official emergency duty on it day of incident. During investigation other I.O. Shoukat Ali Mahar recorded statement of Head Constable incharge Railway Guard Commander who has deposed that how on the day of incident Ali Sher approached him and informed him that he is on emergency duty with D.S.P. and got issued official rifle 7.62 No.39990 China made alongwith a bag and 50 cartridges and such entry No.20 was made by him in Roznamcha book. Further during investigation when the statement of D.S.P. was recorded he also disowned assertion of emergency duty of the applicant with him on. the day of incident. The learned A.A.-G. also pointed out that the official rifle recovered from the place of incident alongwith used empty cartridge was sent for the opinion of Expert and such report has been received with a opinion in positive. The learned A.A.G also argued that the two statements of the witnesses recorded under 164, Cr.P.C., are the statements of none else but the wife and the real brother of the applicant, who were won over by the applicant as he was absconder from the date of incident till 25-8-1997 and could easily manage so. There is no explanation whatsoever from the applicant for his abscondence for such a long period even after dismissal of his two applications of pre-arrest bail. Learned A.A.-G. further contended that one of the Investigating Officers Amjad Mahmood was in league with the applicant and he attempted to damage the case of prosecution by recording these statements of the two witnesses and such efforts amounts to tampering with prosecution evidence and cannot be looked into at the bail stage. The learned counsel in support of his contention referred the case of Nasser Ahmed v. The State (PLD 1997 SC 347) and prayed dismissal of this bail application. I have considered the arguments advanced by both the sides and perused the relevant record. The learned IVth Additional Sessions Judge Sukkur, who has dismissed the bail application of the applicant vide order, dated 9-2-1998, has recorded following reasons for the same:-- "The F.I.R. was lodged promptly leaving no chance of concocting or fabricating the false story by the complainant whose version is fully, corroborated by the statements of four constables who had accompanied him as per roznamcha entry No.7 and were present at place of incident and they are not alleged to have any interest to falsely implicate the accused. Apart from above the P.W. Zafrullah H.C. Armed Wing and Incharge Guard Commander at Railway Police Station Sukkur has also stated in his 161, Cr.P.C. statement that on 11-4-1994 at 1850 hours P.C. Alisher who also the driver of D.S.P. came to him and demanded the rifle on the pretext that he was going alongwith D.S.P. for emergency checking. The P.W. Zafrullah further stated that he issued a rifle No.39990 China made of 7.62 bore alongwith a cloth bandolin containing 50 bullets to the accused and such entry No.20 was also made by him in the roznamcha book. It appears from the mashirnama of place of incident that five empties, five live bullets loaded in rifle and forty other live bullets lying in cloth bandolin all of 7.62 bore and one rifle No.39990 were also recovered by the complainant from the place of incident. Whereas the statement under section 161, of P. W. Muhammad Muslimuddin D.S.P. Railway Sukkur is that on 11-4-1994 his driver Police Station Alisher informed him at about sunset time that the Government vehicle has gone out of order and then after about half an hour the S.H.O. Muhammad Hussain of Railway Police Sukkur came and told him that the P.C. Alisher has committed murder of his one wife and caused injuries to his other wife at his quarter, therefore, he directed the S.H.O. to go at place of incident for necessary formalities and make such entry in the roznamcha. The D.S.P. further stated that on such date neither he had to go for any emergency duty nor he had asked P.C. Ali Sher to get arms. Alongwith his statement the D.S.P. has also attached the copy of entry No.24 of roznamcha which shows that on 11-4-1994 at 1930 hours one P.C. Noor Muhammad of Railway Police Sukkur came and' informed the S.H.O. Muhammad Hussain that his quarter is in Railway Colony Sukkur where P.C. Ali sher the driver of D.S.P. also resides and he with his official rifle has caused the death of his one wife and injured his another wife and then he ran away. The entry No.30 further shows that on the same day at 2100 the S.H.O. Muhammad Hussain who had gone to place of incident at the directions of D.S.P. returned back as the police of section-B Sukkur was already busy in observing the necessary formalities. It is evident from the record that the time and place of incident is not disputed by the accused and the presence of the accused as well as his brother and injured wife on the spot at the time of incident is admitted and the arrival of the complainant alongwith four constables at the place of incident is also admitted by the accused who, however, appears to have introduced a quite different story of the injured through statements of both eye-witnesses recorded by the S.H.O. of Police Station Abad after 2-1-/2 months of the incident on 26-6-1994 which seems to be after thought and requires to be established by the accused at trial as both eye-witnesses namely Mst. Jannat and Sardar Ali as Per the letter of S.S.P. Sukkur, dated 9-7-1995 were sent up in trial under section 201, P.P.C. and it was, therefore, that both these witnesses are not cited as P. Ws. in the challan. " The above reason recorded by the learned IVth Additional Sessions Judge Sukkur are fully justified and leaves no room for doubt that at this stage there is sufficient material to show the involvement of the present applicant in the crime. The report of the Expert, to whom the weapon and the empties were referred for examination is also available and the opinion of the expert is as under:-- "The examination of the case has revealed that the five 7.62 mm bore crime empties now marked as C.1 to C.5 were fired from the above mentioned 7.62 bore rifle No.39990 now butt signed. Note:

1. One .12 bore test empty is being sent in the sealed parcel of the abovementioned fire-arm. (2) The comparison charts and points, thus, prepared would be produced when required." Referring to the case law cited by the learned State counsel, viz. Naseer Ahmed v. The State (PLD 1997 SC 347) in this case the Honourable Supreme Court of Pakistan, dealing with the question of filing of affidavit and its affect at the stage of hearing of bail application has observed as under:-- "We do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reasons that they would still he examined to the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i.e. statements of four injured eye-witnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30 bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from. prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each is to be decided on its own merits " (Underlining is mine). In the instant case also it is noticeable that the applicant, in spite of A rejection of his two pre-arrest bail applications remained absconded from 11-4-1994 to 25-8-1997 and there is no explanation for the same, the recovery of crime weapon, empties, was made in presence of mashirs. The report of the Ballistic Expert, as reproduced above is in positive and there are other circumstances too, to implicate the present applicant with the commission of crime. In such circumstances 164, Cr.P.C. statement of Mst. Janat and Sardar Ali who are closely related to the applicant cannot be considered as a valid justification for grant of bail to the applicant. In view of the above discussion that applicant is not entitled for the concession of bail. It may be observed that what has been discussed above, is tentative in nature, and the trial Court while proceeding with the case shall not be influenced by the same. Foregoing are the reasons for the dismissal of this bail application by short order, dated 31-8-1998. Q.M.H.A-280/K Petition dismissed.