2003 PLP 833 (YLR)

Brief facts of prosecution case as per F.I.R., lodged on 6‑11‑2001 at 12‑00 hours by complainant Muhammad Arif, are that one Ayaz alias Papoo Shaikh and Hussain Mallah had quarrelled with his son deceased Imtiaz Ali aged about 20 years, a Chowkidar in office of U. C. Siyal, which matter was settled notables, namely, Shaman Shabani yet both of them were annoyed with him and about 15/16 days prior to the incident said Hussain Mallah had contacted the complainant to ask his son to behave well, in case otherwise they would not leave him. It is stated that on 6‑11‑2001 the complainant after meeting his son deceased Imtiaz in office of U.C. Siyal went in his ricksaw in town and on receiving information at about 11‑00 hours that his aforementioned son was murdered in the office by unknown culprits with fire arms, arrived on the spot in company of his relatives Hajjan and Jan Muhammad, both by caste Panhwar, and found in presence of people gathered there that his son was lying dead on a cot with an injury on his head and with blood on ground. In the F.I.R. he alleged that unknown culprits had caused death of his son and since above mentioned Ayaz Shaikh and Hussain Mallah had quarrelled with him, he and his P. Ws suspected them to have killed his son. It is stated that as a consequence of investigation, above named Ayaz Shaikh and Hussain Mallah were released under section 169, Cr.P.C. for what of evidence and the appellants, namely, Nadeem and Aijaz were challaned on 3‑12‑2001. Contentions of learned counsel for applicant Nadeem are that neither names of applicants are mentioned in F.I.R. nor any role is attributed to them, there is no eye witness of the incident, there is only hearsay evidence of P.Ws. Jan Muhammad and Hajjan who according to F.I.R., had earlier shown suspicion in above named Ayaz Shaikh and Hussain Mallah that both of them were informed by some people that they had, seen the applicants coming out from the Sial's office after about 5 minutes of fire report, and that belated recovery of country made pistol from accused Nadeem on 29‑11‑2001 after about 11 days of his arrest on 18‑11‑2001 at his instance does not hold him responsible for commission of alleged offence. He placed reliance on case of Muhammad Khan v. The State (2001 PCr.LJ 1628 D.B.). Mr. Faiz Muhammad Qureshi, Advocate representing applicant Aijaz reiterated the same grounds advanced by learned counsel for applicant Nadeem and further stated that from his client no recovery was made. He further submitted that the evidence of last seen is the weakest type of the evidence and particularly in the circumstances of this case the matter against the applicant, is of further enquiry. He placed reliance on case of Abdul Saleem v. The State (1998 SCMR 1578) and the case of Abdul Salam Irfan v. The State (2000 PCr.LJ 842). Learned Assistant A.‑G. in his arguments does not dispute the contentions of both the learned counsel for the applicants. He admitted that the case of the applicants required further enquiry. I have heard arguments of learned counsel for the parties and with their assistance I have examined the material made available before me. In the case of Muhammad Khan (supra) while granting bail to the applicant/accused it has been observed as follows:‑‑‑ "The perusal of material placed on record shows that name of the applicant/accused does not appear in the F.I.R. Not a single witness has implicated him in the commission of offence. The alleged incident occurred on 26‑7‑2000. The applicant/accused was arrested on 16‑10‑2000. The only allegation against him is that he during the course of investigation led the police party and produced the rifle on 23‑10‑2000. In their further statements dated 11‑8‑2000 complainant and prosecution witnesses have stated before the police that they came to know that applicant/accused might have committed the offence but no source of information has been disclosed." In the case of Abdul Saleem (supra) while granting bail to the petitioner therein in crime registered under sections 302, 34, P.P.C. it has been observed as follows:‑‑ "

2. Learned counsel for the petitioner argued that, the petitioner was not named in the F.I.R.; no recovery had been effected from him; there was no eye‑witness of the incident; and that the petitioner had been falsely involved merely on the ground that the deceased was last seen being allegedly taken away by the accused. He further submits that the petitioner is in jail since 21‑2‑1997 and that prima facie there is no evidence on record to connect the accused with the alleged offence.

3. After hearing the learned counsel for the petitioner as well as the State, we find that, the circumstances of the case, the matter requires further inquiry. " Also, in the case of Abdul Salam Irfan (supra), a murder case, in which in the F.I.R. name of the applicant was not mentioned and suspicion was expressed against other persons; learned trial Court denied the bail on the ground that there were two witnesses of last seen evidence and circumstantial evidence and that place of incident was pointed by applicant, bail was granted by High Court. There is no denial that neither are role is assigned to applicants nor their names are shown in the F.I. R. according to which the complainant and the two P.Ws Hajjan and Jan Muhammad, close relatives of complainant, are alleged to have shown their suspicion in co‑accused Ayaz Shaikh and Hussain Mallah who have been let off during the course of investigation under section 169, Cr.P.C. Nobody is said to have seen the applicants causing death of the deceased and there is only allegation in 161, Cr.P.C. statements of the above mentioned two witnesses that some people informed them that the present applicants were seen coming out from the U.C. Office Sial some time before ,the incident. Of course it is alleged that a country‑made pistol has been recovered from applicant Nadeem but the said recovery is' alleged to have been effected after about 11 days of his arrest. In the above circumstances more so keeping in view the case‑law, the case against the applicants, appears to be of further inquiry. I, according admit both the applicants to bail subject to their furnishing surety in the sum of Rs.100,000 each and P.R, in the like amount to the satisfaction of trial Court. N.H.Q./N‑114/K Bail allowed.