2009 PLP 30 (MLD)

KHAWAJA NAVEED AHMED, J.

This second bail application has been filed on behalf of accused Muhammad Ismail. The earlier bail application was dismissed as not pressed by order, dated 28-2-2008 and directions were given to the trial Court for recording evidence of complainant within 45 days from the date of receipt of the order of this Court. Since the above direction was not complied with the accused hac6repeated the bail application in the trial Court without success. He had filed the same in High Court on 10-7-2008 and by order, dated 17-7-2008, this Court called the comments from the trial Court to the effect that as to why direction of this Court has not been complied with. In compliance of the order, Mrs. Munawwar Sultana, learned V-Additional District and Sessions Judge, Karachi East, had filed her reply dated 29-7-2008 and informed this Court that she has taken coercive steps for procuring the attendance of the witnesses and matter is fixed on 5-8-2008 for recording evidence of complainant/P. Ws., therefore, the instant bail application was adjourned to 6-8-2008. When matter came up for hearing on that date, the learned counsel for the application informed this Court that one P.W. namely Sohail Akhtar has been examined on 5-8-2008. Thereafter, he was directed to file the copy of evidence of the witness and matter was adjourned to 15-8-2008. On that date learned State Counsel had asked that copy of the evidence has not been supplied to him. The matter was adjourned to 26-8-2008, when the State Counsel had asked for time, to go through the evidence. Today, the learned counsel for the applicant Mr. Akhtar Ali Mastoi and Ms. Naheed Naz, State Counsel has argued this matter at length and I have perused the evidence recorded on 5-8-2008 by the trial Court. The complainant is a police constable, he has alleged that his mobile phone has been snatched from him by three accused persons and after their snatching the mobile he had fired upon them. The present applicant received injuries at the hands of the police constable on his leg and was lying on the spot in the pool of blood. The remaining two accused were reported to have run away in the bushes but were later on apprehended. Learned counsel for the applicant has drawn attention of this Court towards the medico-legal certificate, as well as F.I.R. of this case. In F.I.R. the date and time of incident is mentioned as 3rd January, 2008 at 0015 hours. In medico-legal certificate the date and time of examination is mentioned as 3rd January, 2008 at 4-30 p.m. and the duration of the injury has been shown from 16 to 18 hours. The time of arrival has not been shown in the medico-legal certificate. Two accused persons have been shown as injured by Medico-legal Officer and time of his arrival has been shown by the hospital as 430 p.m. If the incident had taken place on 0015 hours, how the injured were kept at the police station for 16 hours. This fact alone makes the entire prosecution story doubtful. Moreover, there are discrepancies in the evidence of the witness who is a police constable. Learned State Counsel Ms. Naheed Naz, has strongly opposed this bail application. She states that it is well-settled law that minor discrepancies in the evidence of the witness are not given any weight at the bail stage. She further states that arrest of the accused and recoveries have been proved through evidence and as such no case for grant of bail is made out. I am, in agreement with Ms. Naheed Naz, the learned State Counsel that at the bail stage minor discrepancies in the evidence and contradictions are not given any weight while deciding the bail application. But in the present case I am not looking into discrepancies in the evidence or contradictions in the statement of P.W. What is bothering me is 16 hours delay for taking injured to the hospital specially when the blood was oozing from the wound and accused was suffering from fire-arm injury caused to him by the complainant, who is also a police constable. I find some force in the arguments of the learned counsel for the applicant that police is hiding the actual facts of the incident and the present facts are fabricated one and recoveries are foisted one. However, I am not making any comments on the evidence as well as on the merits of the case because it may prejudice the case of the either side at later stage. Without deeply appreciating the evidence, I have made up my mind that facts narrated in the evidence of P.W.1 as well as in the F.I.R. require further inquiry under section 497(2), Cr.P.C. and during the pendency of the inquiry the applicant has made out a case for grant of bail. Moreover, the direction of this Court has not been complied with. Complainant being a police constable has not bothered to appear before Court for recording his evidence. Only one witness P.W. namely Sohail Akhter who is also a police constable has been examined and not a single private witness was associated in the investigation though according to the admission of the P.W. in his cross-examination "the area is surrounded by shops and houses". Under these circumstances, I grant bail to the accused upon furnishing surety in the sum of Rs.30,000 and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. The above observations made by me are tentative in nature and the trial Court should not be influenced by it while deciding the case. The case should be decided strictly on merits, according to the evidence brought before it by the parties. H.B.T./M-140/K Bail allowed.