2021 PLP 115 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

By this common order, I propose to dispose of these two bail applications as both arise out of Crime No.116 of 2020 registered with Police Station Doulatpur, involving common question of law as well as facts.

2. At the very outset, Mr. Ahsan Gul Dahri, Advocate files true copy of FIR No.116 of 2020 along with diary sheet; same is hereby taken on record. Likewise, Mr. Farhad Ali Abro, Advocate, files his Vakalatnama on behalf of complainant in Criminal Bail Application No.S-995 of 2020; same is also hereby taken on record.

3. Concisely, the facts of the case are that a longstanding dispute was going on between complainant and accused party. The complainant party lodged FIR against accused party on which they were annoyed and threatened the complainant that on their release from jail they would teach them a lesson. On 18.08.2020, complainant along with his cousin Ghulam Mohiuddin alias Wajahat, Gulsher and Zakari went to attend the Khairaat (Feast) of their uncle Ali Raza Dahri at village Salaar Dahri on separate motorcycles. On their return, at about 05:00 p.m., when they reached at the link road, they saw one black coloured Vigo and one white coloured Rivo vehicles and reached infront of them, from where eleven persons alighted and stopped Ghulam Mohiuddin alias Wajahat. Out of them, accused Muhammad Awais Dahri and Aijaz Dahri abused Ghulam Mohiuddin alias Wajahat as he stood witness against them. Both these accused instigated other accused persons to forcibly take away Ghulam Mohiuddin alias Wajahat, on which accused Sikandar and Mukhtiar forcibly caught him from his arms and boarded him in white coloured Rivo and then both vehicles went towards village Bado Dahri. At about 05:30 p.m, accused persons arrived on the road infront otaque of Mian Ahmed Dahri and pointed their weapons upon him. Thereafter, complainant and PWs arrived there and started crying. Accused Sikandar, Ghulam Sarwar, Shabeer Ahmed, Mukhtiar and Mahkumuddin aimed their weapons upon complainant and PWs in order to keep silence. Meanwhile, accused Muhammad Awais and Aijaz Dahri instigated co-accused by disclosing that they have made a conspiracy for committing murder of Ghulam Mohiuddin alias Wajahat and such murder would be a gift for Muhammad Ismail Dahri. On such instigation, accused Mian Ahmed Dahri made straight fire of his pistol upon Ghulam Mohiuddin alias Wajahat, which hit him below the right ear and went through and through, consequently the deceased succumbed to the injuries. Thereafter, the complainant party raised cries and then accused went away on their respective vehicles by making aerial firing. Thereafter, the nekmard Ali Raza Dahri and complainant's uncle arrived there who then informed the police of Police Station Doulatpur. The police reached there and brought the dead body at RHC Shahpur, where postmortem was conducted and after postmortem the dead body was handed over to the complainant, who after funeral ceremony went to P.S. and lodged instant FIR.

4. Learned Counsel for applicants in Criminal Bail Application No.S-839 of 2020 submit that names of applicants are not transpiring in the FIR and no specific role has been assigned against them. Both learned Counsel submit that alleged incident took place on 18.08.2020, whereas report was lodged on 19.08.2020 with delay of about 21 hours. They further submit that complainant had got recorded his further statement before the I.O. on 26.08.2020, whereby he has stated that one Muhammad Hanif Bhutto, who appears to be their friend, had informed that co-accused Mukhtiar had talked to him on phone that they are going to commit offence and subsequently this incident took place on 18.08.2020. Learned Counsel further submit that FIR was delayed for about 21 hours and the said Muhammad Hanif Bhutto did not disclose the names of accused to complainant, therefore, they have not been named in the FIR. They further submit that further statement of the complainant is also delayed for about 08 days, inspite of that they have failed to establish the accurate meeting as well as conversation for designing the conspiracy by the accused against complainant party. Learned Counsel further submit that after furnishing surety before this Court the accused have joined trial proceedings and the case has been assigned to MCTC where it is expected that it would be concluded within shortest possible time. Learned Counsel lastly submit that further statement has got no evidentiary value in the eyes of law and it can be given value as that of statement under Section 161 Cr.P.C. and cannot be deemed to be part and parcel of FIR. In support of their contentions, they have placed reliance upon the cases of Abid Ali alias Ali v. The State (2011 SCMR 161), Habibullah v. The State (2019 YLR Note 24), Mukhtiar Ahmed v. The State (2019 PCr.LJ Note 51), Arjamand Shahzadi and another v. The State and another (2019 PCr.LJ569), Rais Wazir Ahmad v. The State (2004 SCMR 1167), Hassan and others v. The State and others (PLD 2013 Supreme Court 793) and Multiline Associates v. Ardeshir Cowasjee and 02 others (PLD 1995 Supreme Court 423).

5. Mr. Aijaz Shaikh, learned Counsel for applicant/accused Aijaz alias Aijaz Hussain Dahri in connected Bail Application No.S-995 of 2020 submits that applicant has falsely been implicated due to enmity with complainant party over landed dispute. He further submits that no specific role or overt act is assigned to the applicant except firing from weapon in the air, even the motive is not clear against him. He further submits that applicant preferred Criminal Bail Application No.S-830 of 2020 before this Court and was granted ad-interim pre-arrest bail on 31.08.2020; however, could not arrange the surety; therefore, was taken away by the police on same date when he left Court premises and later was shown to have been arrested along with a pistol. He next submits that the memo of recovery does not show the proper or actual empties; however, the FSL in its report had shown recovery of empties of 9MM pistol. He further points out that prior to this incident he had held a press conference against the then Special Assistant to the Chief Minister, namely Muhammad Ismail Dahri, who allegedly had occupied upon his lands and such cases are pending adjudication before the appropriate forum; hence, exerted illegal pressure upon him so that he may not pursue his case against said Muhammad Ismail Dahri, who has been made accused in this case; therefore, case against him requires further inquiry. In support of his contentions, he places reliance upon the cases of Attaullah and 03 others v. The State and another (1999 SCMR 1320), Muhammad Sadiq and another v. The State (1996 SCMR 1654) and Tariq and 03 others v. The State (2018 MLD 745).

6. Mr. Shawak Rathore, Deputy Prosecutor General appearing for the State opposes both applications on the ground that accused have categorically been implicated by the prosecution and bail before arrest is an extraordinary relief which cannot be granted unless the seeker may establish its ingredients as enshrined by the Apex Court in its numerous judgments. He further submits that role of abetment against the accused in Criminal Bail Application No.S-839 of 2020 has also been established by the prosecution; therefore, they do not deserve extraordinary relief. In support of his contentions, he has placed reliance upon the cases of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427), Raja Muhammad Irshad v. Muhammad Bashir Goraya and others (2006 SCMR 1292) and Rab Nawaz and 02 others v. The State (2015 PCr.LJ 1531).

7. Mr. Farhad Ali Abro, learned Counsel for complainant while adopting arguments advanced by learned D.P.G. also opposes the bail applications and raises legal objection against accused in Criminal Bail Application No.S-839 of 2020 on the ground that without exhausting remedy available to the accused they have directly filed this bail application before this Court and in view of a dicta laid down by the honourable Supreme Court in case of Rana Muhammad Arshad (supra) is not maintainable. As far as, bail application of co-accused Aijaz alias Aijaz Hussain Dahri is concerned, he also opposes the same on the ground that besides allegations in the FIR as well as instigation, he has been assigned the role of abduction and this being a heinous crime carries maximum punishment; therefore, he is not entitled to be released on bail.

8. Heard learned Counsel for the respective parties and perused the material available on the record.

9. Perusal of record, it transpires that the names of applicants Khan Muhammad Dahri and Mithal Khan Dahri are not transpiring in the FIR and no specific role has been assigned by the complainant in his FIR against unknown persons. The alleged incident as is evident is said to have taken place on 18.08.2020, whereas report of the incident was lodged on 19.08.2020 with delay of about 21 hours. It further transpires that complainant has got recorded his further statement before the I.O. on 26.08.2020, whereby he has contended that one Muhammad Hanif Bhutto, who happens to be their friend, had informed that co-accused Mukhtiar had talked to him on cell phone on the pretext that they are going to commit offence and subsequently this incident took place on 18.08.2020. The subject FIR was lodged with delay of about 21 hours, even then said Muhammad Hanif Bhutto did not disclose the names of both accused to complainant and therefore their implication at latter stage through further statement requires further probe. Record further reflects that further statement of the complainant is delayed for about 08 days, even then they have failed to pinpoint the accurate meeting as well as conversation for designing and hatching the conspiracy against both the accused. It is settled law that if the name of any accused is not transpiring in FIR but his name is brought on record later on during investigation through further statement of the complainant, infact loses the evidentiary value in the eyes of law and at the most it could be termed as the statement under section 161, Cr.P.C. and it could not be equated with FIR. In this respect, reliance is placed upon the case of Noor Muhammad v. The State (2008 SCMR 1556) and Abid Ali alias Ali v. The State (2011 SCMR 161).

10. In case of Noor Muhammad (supra) while dealing with identical issue the Honourable Supreme Court of Pakistan has held in Para No.6 of the judgment as under:-- "In case the contents of the first information report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under section. 497, Cr.P.C. Moreover, since name of petitioner and co-accused were not mentioned in the FIR and was mentioned in the supplementary statement by complainant which fact also brings the case within the ambit of further inquiry. It was held by this Court in the case of Falak Sher alias Sheru v. The State 1995 SCMR 1350 that FIR is the document which is entered into book maintained at the police station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under section 156, Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of it. Similarly it was held by this Court in the case of Khalid Javed and another v. The State 2003 SCMR 1419 that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with FIR nor read as part of the same and the value of the supplementary statement, therefore, will be determined keeping in view the principles enunciated by the superior Courts in this behalf." Therefore, legality of further statement recorded by the complainant through I.O. at this belated stage will be determined by the trial Court keeping in view the principles enunciated by the superior Courts in this behalf.

11. In case of Muhammad Jahangir Afzal v. The State (2020 SCMR 935), the applicability of supplementary statement has been discussed by the Honourable Supreme Court of Pakistan in Para No.3 of the order which reads as under:- "3.....Evidentiary value of supplementary statements with the possibility of a space to reconcile differences between the witnesses is an exercise that can be best undertaken after recording of evidence and as such petitioner's culpability for the present is squarely covered by subsection (2) of section 497 of the Code of Criminal Procedure, 1898; a case for grant of bail stands made out."

12. Since the names of applicants Khan Muhammad and Mithal Khan do not transpire in FIR and they have been implicated by the complainant through his further statement, which got recorded at belated stage, and further statement has got no evidentiary value or any legal effect in the eyes of law; hence, the source of information by which they have been implicated in this case as an accused carries no weight then mere heinousness of crime or its severity would not forbid to bring their case within the ambit of subsection (2) of section 497, Cr.P.C.

13. As far as conspiracy is concerned, no where it is alleged by the prosecution that applicants in Criminal Bail Application No.S-839 of 2020 have held a meeting in presence of PW Muhammad Hanif Bhutto for designing and hatching the conspiracy; hence, the basic ingredients of abetment are lacking in this case. Besides, PW Muhammad Hanif Bhutto was not nominated in the FIR as witness. The statement of PW Muhammad Hanif Bhutto is based upon statement of co-accused Mukhtiar Ali on telephone and that Mukhtiar Ali has not been arrested so far; therefore, his statement has not been recorded by the Police. In further statement, it is nowhere contended that applicants in Criminal Bail Application No.S-839 of 2020 have held meeting where PW Muhammad Hanif Bhutto or co-accused Mukhtiar were the members. Further, though cell number of co-accused Mukhtiar viz. 0300-4061358 and that of PW Muhammad Hanif viz. 0301-3895863 is given in the further statement, yet no CDR Was collected by the I.O. during investigation; hence, nexus or chain of the crime has not been established through which it could be deduced that applicants Khan Muhammad Dahri and Mithal Khan Dahri have any nexus or concern with the alleged crime; therefore, their case would fall within the ambit of further inquiry.

14. As far as the argument of learned Counsel for complainant that without exhausting remedy before the lower forum, accused Khan Muhammad Dahri and Mithal Khan Dahri have directly filed their application before this Court, which he terms to be not maintainable. In that there is no cavil and it is well settled principle of law that normally an accused, against whom a criminal case is registered, at the first instance may approach the forum having jurisdiction especially for seeking bail before arrest as the propriety demands but it is not an absolute rule as each and every case depends upon the compelling circumstances which can warrant any accused to directly approach the High Court as the High Court has inherent jurisdiction to deal with such cases where life of an accused is at stake. It is settled law that if an application has been preferred before the High Court and it has entertained and granted ad-interim pre-arrest bail to the applicant(s) then instead of dismissing it on technical grounds it must be disposed of on merits. In the instant case, the names of applicants Khan Muhammad Dahri and Mithal Khan Dahri are not transpiring in FIR, besides charge against them has also been framed by the trial Court and longstanding enmity existing between the parties over political rivalry as well as landed dispute then the Court instead of rejecting his/their plea for anticipatory bail decide the same on merits; hence, it would not be in the interest of justice to send back the case to the Court of Sessions for decision as well as fate of their bail application on merits. Reliance in this respect is placed upon the cases of Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256), The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322) and Zafar Ali and another v. The State (2006 PCr.LJ 612).

15. So far as, the case against applicant Aijaz alias Aijaz Hussain Dahri is concerned. Admittedly, he is nominated in the FIR with specific role of abetment, instigation and abduction as he at the time of incident was present when deceased Ghulam Mohiuddin alias Wajahat was subjected to murder. The eye-witnesses are there who have fully implicated accused Aijaz alias Aijaz Hussain Dahri with the commission of the offence, while recording their statements under section 161, Cr.P.C. The presence of applicant Aijaz at the scene of occurrence has not been denied. The allegation against the applicant is specific and clear as he has assisted co-accused in abducting and maltreating the deceased and he has failed to satisfy the Court as to why false FIR has been registered against him by the complainant. The offence with which the applicant is charged is heinous one. Co-accused Mian Ahmed under the command of present accused Aijaz and Awais had caused firearm injury to deceased. Consequently, one innocent person has lost his precious life; hence, the offence being heinous one carries capital punishment; therefore, falls within the prohibitory clause of section 497(1), Cr.P.C. Further, applicant Aijaz alias Aijaz Hussain Dahri has not proved any mala fide on part of the complainant, who has fully explained the delay in lodgment of FIR to the effect that he was busy in receiving the condolence of his deceased cousin. The delay in lodgment of FIR alone is never considered to be the sufficient ground for grant of bail in a case involving capital punishment. Accused Aijaz alias Aijaz Hussain Dahri has committed the offence in league with other accused. If the criminal act is done by several persons in furtherance of their common intention then each of such persons would be held liable for that act in the same manner. Everything depends on the intrinsic value of the evidence which is produced by the prosecution; therefore, it is for the trial Court to evaluate such evidence which is yet to be recorded, since then accused Aijaz alias Aijaz Hussain Dahri has to remain behind the bars as he not only has committed a single offence but has committed chain of offences i.e. abetment, instigation and abduction of an innocent person. It is well settled law that the Court has to make tentative assessment while deciding bail application before recording evidence and deeper appreciation of evidence is not permissible at bail stage which may cause prejudice to the case of either party at trial. Reliance in this regard is placed upon the case of Shah Zaman and 2 others v. The State and another (PLD 1994 SC 65).

16. For the above detailed reasons, by a short order dated 14.12.2020 Criminal Bail Application No.S-839 of 2020 was allowed and interim pre-arrest bail granted to applicants/accused Khan Muhammad Dahri and Mithal Khan Dahri on 31.08.2020 was confirmed on same terms and conditions. However, Criminal Bail Application No.S-995 of 2020 filed by applicant/accused Aijaz alias Aijaz Hussain Dahri was dismissed. Since the case has been assigned to MCTC where it is expected that it will conclude the trial within shortest possible time under intimation to this Court. These are the reasons for the above said short order. JK/K-3/Sindh Order accordingly.