2013 PLP 164 (YLR)

NAIMATULLAH PHULPOTO, J.

By this common order, I would like to dispose of both these Criminal Bail Application No.790 of 2011 filed by applicant/accused Shahzado for bail after arrest and Criminal Bail Application No.817 of 2011 filed by applicants/accused Ghazi and others for pre-arrest bail, as the same arise out of one and same Crime No.82 of 2011, lodged at Police Station, Ubauro, registered for offences under sections 302, 201 P.P.C. Bail applications moved on behalf of applicants/accused were ejected by trial Court vide order dated 20-8-2011. Brief facts of the prosecution case as disclosed in the F.I.R. by the complainant Ghulam Mustafa are that his son Muhammad Murad, aged about 17/18 years was studying in Guddu college. After college hours, son of the complainant was sitting at computer shop. On 23-2-2011 complainant along with Atur and maternal uncle Shah Bux closed shop at 7-00 p.m. It is alleged that Muhammad Murad (now deceased) asked complainant to go to home and he would return home after sometime. Thereafter, son of complainant did not return back for the whole night. On the morning of 23-2-2011 complainant along with P.Ws. and others took the footprints and noticed footprints of his son and six other persons in the land of Allah Bux Dasti. At some distance, on the bank of Feeder Canal, dead body having head cut without clothes was found. Thereafter complainant party took the dead body without head to Police Station. S.H.O. referred dead body for postmortem examination and report. After postmortem examination complainant went to Police Station and lodged F.I.R. against unknown persons. F.I.R. was lodged under the above referred sections on 3-3-2011. Statements of P.Ws. Shah Bux and Atur were recorded under section 161 Cr.P.C. on 4-3-2011. Investigation Officer of this case submitted report before learned Judicial Magistrate Ubauro for disposal of case under A-class which was accepted vide order dated 17-6-2011. P.Ws. Atur and Shah Bux submitted application to the learned Judicial Magistrate, Ubauro for seeking direction to I.O. for recording their 161 Cr.P.C. statements. The learned Magistrate allowed such application by order dated 17-6-2011. Further statement of complainant was recorded on 27-6-2011 in which he stated that on P.Ws. Atur and Shah Bux informed him that on 23-2-2011 after sunset time, they had seen accused Ghazi, Muhammad Ayub, Rafique Ahmed armed with rifles, Bashir Ahmed with pistol, Muhammad Ameen with hatchet and Shahzado with gun, they were dragging deceased and accused Ghazi and Bashir instigated co-accused to kill Muhammad Murad. Motive behind incident as disclosed in the further statement is that uncle of deceased Ghulam Fareed had got detained son of accused Ghazi in theft case and he expired in jail. Complainant further disclosed that when he came to know about names of accused persons, he approached to accused Ghazi and he demanded cash of Rs.5 lacs from the complainant for return of head of deceased. Thereafter, it is stated that complainant paid Rs.50,000 to accused Ghazi which he received and returned watch, chapel of deceased to complainant and stated that head of deceased was thrown by him in a canal. On the same day, further statements of P.Ws. Atur and Shah Bux were recorded by the SIO, Police Station Khambhra. Accused Shahzado was arrested on 8-7-2011. After usual investigation, challan was submitted against accused Shahzado and remaining applicants/accused were shown absconders in the challan-sheet. Learned counsel for the applicants/accused contended that F.I.R. was lodged by complainant on 3-3-2011 against unknown persons and 161, Cr.P.C. statements of P.Ws. Atur and Shah Bux were recorded on the next day, in which they had also stated that murder has been committed by unknown persons. He further contended that after 3 months and 23 days, further statements of complainant and P.Ws. were recorded in which they have implicated the accused persons. Learned counsel further submitted that complainant had submitted application regarding murder of his son against one Ghulam Hussain. It is argued that there is criminal litigation between the parties, therefore, false implication of accused cannot be ruled out. Serious mala fide on the part of complainant and police have been alleged in this case. In support of his contentions, he relied upon case-law reported in Amir Hamza v. The State (1988 SCMR 755), Suba Khan v. Muhammad Ajmal and others (2006 SCMR 66), Abid Ali alias Ali v. The State (2011 SCMR 161), Syed Amanullah Shah v. The State (PLD 1996 SC 241), Javed Iqbal v. The State (2008 PCr.LJ 1578) and Qudarutullah v. The State and another (2011 MLD 403). Learned A.P.-G. for the State assisted by learned counsel for the complainant argued that names of applicants/accused have been disclosed by complainant and P.Ws. in their further statements. There is evidence of last seen to connect the applicants/accused in the commission of offence. Bail applications have been strongly opposed. In support of contentions, learned A.P.-G. relied upon case-law reported in Ajmal Khan v. Liaquat Hayat and another (PLD 1998 SC 1997) and Imtiaz Ahmed v. The State (PLD 1997 SC 545). I have carefully perused the contents of the F.I.R., lodged on 3-3-2011, 161 Cr.P.C. statements of P.Ws., recorded on 4-3-2011, further statements of complainant and P.Ws. recorded on 27-6-2011, postmortem report, other material available on record and case-law. In my considered view, the applicants/accused are entitled for the grant of bail for the reasons that incident had taken place on 23/24-2-2011 while F.I.R. was recorded on 3-3-2011 against unknown accused persons. Statements of P.Ws. Atur and Shah Bux were recorded under section 161, Cr.P.C. on 4-3-2011 in which they had also not implicated any of the accused and stated that some unknown persons had committed murder of deceased. Further statement of complainant was recorded on the basis of information given to him by P.Ws. Atur and Shah Bux in which they had stated that they had lastly seen the present applicants/accused while taking away deceased. In the further statement it is stated that accused Ghazi received cash of Rs.50,000 and returned one wrist watch and chappal of the deceased. Value of further statements of complainant and P.Ws. recorded after 3 months and 23 days is yet to be determined at trial. From careful perusal of police papers, learned A.P.-G. stated that no one had seen the accused persons while committing murder of deceased. It is argued that there is criminal litigation between the parties. Serious mala fide on the part of complainant and police have also been alleged. It is argued that mala fide is apparent from the further statements of complainant and P.Ws. and the manner in which investigation has been carried out. In the case of Abid Ali v. The State reported in 2011 SCMR 161, Hon'ble Supreme Court has been pleased to observe as under:-- "It is also settled principle of law that ipse dixit of the police is not binding on the court. This proposi-tion is also supported by Manzoor's case (PLD 1972 SC 81). It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution as law laid down by this Court in Amir v. The State (PLD 1972 SC 277). It is an admitted fact that name of the petitioner is not mentioned in the F.I.R. but his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry, See Tahir Abbas v. The State (2003 SCMR 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497 Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior courts dealing with the bail matter are always tentative in nature. At the bail stage deeper appreciation of evidence cannot be gone into but a bird eye view is to be taken to the available record before the Court to satisfy prima facie, whether applicants/ accused are connected with the commission of offence or not. Even otherwise, benefit of doubt will go to the accused even at bail stage. Rightly reliance has been placed upon the above cited authorities. I have no hesitation to hold that case against the applicants/accused requires further inquiry as contemplated in subsection (2) of section 497, Cr.P.C. Consequently, applicant/accused Shahzado is enlarged on bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court, while interim bail already granted to the applicants/accused Ghazi, Muhammad Ayoub, Bashir Ahmed and Muhammad Ameen by this court on 25-8-2011 is hereby confirmed on same terms and conditions. Both bail applications are disposed of accordingly. MWA/G-22/K Order accordingly.