2013 PLP 1214 (MLD)

SYED IFTIKHAR HUSSAIN SHAH, J.

Muhammad Saleem petitioner has sought post arrest bail in case F.I.R. No.33/2012 dated 23-1-2012 registered under section 302/34, P.P.C. at Police Station Muhammad Pur Tehsil Jampur District Rajanpur.

2. The allegation against the petitioner is that he while armed with fire arm along with his co-accused, attacked upon Muhammad Yaqoob and caused multiple injuries on his person, who succumbed to the injuries suffered by him.

3. Learned counsel for the petitioner has contended that the case against the petitioner is false and concocted one; that the petitioner is not the nominated accused of the F.I.R. and he has been implicated in this case on the basis of extra judicial confession made before the P.Ws. which is a weak type of evidence; that the recovery of rifle at the hands of the petitioner is still inconsequential as the report of Forensic Science Laboratory has not been received so far; that the nominated accused of the F.I.R. have been got declared innocent by the complainant himself while falsely implicating the present petitioner, therefore, the case of the petitioner is one of further inquiry and he is entitled to the concession of bail. Relies on cases titled "Muhammad Irfan and others v. The State and others (2012 PCr.LJ 625 (Lahore))" and "Noor Muhammad v. The State (2008 SCMR 1556 (Supreme Court of Pakistan))".

4. On the other hand learned D.P.G. assisted by the learned counsel for the complainant has opposed this petition and it is contended that although the petitioner is not the nominated accused of the F.I.R. yet sufficient incriminating evidence is available on record against him in the shape of extra judicial confession and the recovery of weapon of offence; that the vital injury has been attributed to the petitioner and that the trial has been commenced, therefore, he is not entitled to the concession of bail. Relies on "Muhammad Imran Butt v. The State (2012 MLD 665 (Sindh))" and "Irfan Khan v. The State (2009 MLD 120 (Lahore))".

5. I have heard learned counsel for the petitioner, learned DPG for the State assisted by the learned counsel for the complainant and have perused the record.

6. According to the F.I.R. Muhammad Sadiq, Sher Muhammad and Bashir Ahmad along with an unknown person while armed with kalashnikov attacked upon Muhammad Yaqoob and Sher Muhammad fired with his kalashnikov which hit Muhammad Yaqoob, who succumbed to the injuries, while Bashir Ahmed and Muhammad Sadiq also fired which missed. The aforesaid three accused persons were seen by the complainant and the P.W. in the light of high torch. Thereafter the complainant submitted affidavit and let off the nominated accused of the F.I.R. and the present petitioner along with his co-accused was implicated through supplementary statement on the suspicion and on the alleged extra-judicial confession made by them before the P.Ws. The supplementary statement was made after about four months of the occurrence. The petitioner was arrested on 31-5-2012 and rifle was allegedly recovered on his pointation, however the report of Forensic Science Laboratory is still awaited.

7. Learned counsel for the complainant while relying on case titled "Rab Nawaz and another v. The State and another (2005 PCr.LJ 13 (Peshawar)" and "Umed Ali v. The State (2005 YLR 3217 (Karachi))", has contended that specific role was attributed to the petitioner and sufficient incriminating evidence was available on record against him, therefore, the petitioner is not entitled to the concession of bail but in both the above cited cases, the accused whose bail was sought, was nominated accused of the F.I.R. and specific role was attributed to him. In the present case the petitioner has been nominated on the basis of supplementary statement after 4/5 months of the occurrence after substituting the nominated accused. Learned counsel for the complainant while relying on case titled "Irfan Khan v. The State (2009 MLD 120 (Lahore))", has contended that the trial has commenced, therefore, the petitioner is not entitled to the concession of bail but it has been held by the Hon'ble Supreme Court of Pakistan that the commencement of trial does not debar the release of an accused on bail if he is otherwise entitled to the said relief. Reliance can be placed on case titled "Abid Ali alias Ali v. The State (2011 SCMR 161)".

8. The facts of the case titled "Muhammad Imran Butt v. The State (2012 MLD 66 (Sindh))" are also not applicable to the facts of circumstances of the present case. In the said case, the accused had pointed out the place of murder and the dead body was got recovered on his pointation and he had confessed his guilt before the police.

9. Abdul Sattar complainant had mentioned in the F.I.R. that it was Sher Muhammad, who had fired with his Kalashnikov at Muhammad Yaqoob deceased hitting him on the left side of his belly and he succumbed to the injuries. The said occurrence was witnessed by the complainant in the light of high torch. The complainant did not stick to his version contained in the F.I.R. and submitted affidavit exonerating the nominated accused. After 4/5 months of the occurrence, the complainant got recorded his supplementary statement and implicated the present petitioner along with his co-accused with the specific role of firing at the deceased. It has been held time and again by this Court as well as by the apex Courts of the country that supplementary statement is an innovation not recognized by law which has been devised by the police to cut short the process of investigation. Reliance can be placed on case titled "Noor Muhammad v. The State (2008 SCMR 1556 Supreme Court of Pakistan))".

10. In case the contents of the F.I.R. and the supplementary statement are put in juxtaposition, then, it is crystal clear that the complainant had taken altogether U-Turn from his previous stand by letting off the accused mentioned in the F.I.R. and implicating new one on the basis of extra judicial confession. Any statement or further statement of the complainant recorded during the investigation by the police would neither be equated with the first information report nor read as a part of it and the value of the supplementary statement will be determined keeping in view the principles enunciated by the superior Courts in this behalf. The subsequent version of the complainant involving the petitioner in the commission of offence on the basis of extra judicial confession allegedly made by him before the P.Ws., has made out a case of further inquiry as the value and authenticity of the said extra judicial confession is to be seen by the learned trial Court after evaluating the evidence during trial. As such the petitioner is entitled to the concession of bail. Therefore, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000 with one surety in the like amount to the satisfaction of the learned trial Court. MWA/M-298/L Bail allowed.