2011 PLP 833 (YLR)

TUFAIL H. EBRAHIM. J.

By this single order I intend to dispose of two Bail Applications Nos.812 of 2010 and 874 of 2010, arising out of F.I.R. No.330 of 2010, registered at Police Station Sohrab Goth for the offence punishable under section 302/34, P.P.C. These bail applications are directed against the order dated 29-6-2010, passed by the learned 1st Additional Sessions Judge, Malir Karachi in Criminal Bail Application No.476 of 2010, whereby the bail applications of the applicants/accused were rejected. Brief facts of the prosecution case are that statement under section 154, Cr.P.C. of complainant Syed Asadullah Shah was recorded vide Entry No.41 and then such statement was incorporated in F.I.R. on 2-5-2010 at 0545 hours at Police Station Sohrab Goth. The complainant has stated that on 2-5-2010, he was present in his house, when at about 0120 hours his nephew Mujahid Hussain son of Imam Ali Shah informed him that his brother Ishrat Hussain along with his friend Asghar Siraj were in car and reached the corner of Gali No.3, motorcyclists fired upon them resulting in 'injury. The mohalla boys took the said two injured persons to hospital in the Ishrat's car. On hearing such information the complainant immediately proceeded to Patel Hospital, where he found that both the injured had succumbed to their injuries. They brought the deceased to Abbasi Shaheed Hospital by Ambulance, where police completed all the legal formalities. The complainant also stated that earlier at about 2300 hours on 1-5-2010, his nephew and his friend Majid had quarreled with Kashif Dado and Majid would know all the related facts. The complainant claimed that Kashif Dado with his companions came on motorcycle and committed murder of his nephew and his friend by firing upon them on account of personal enmity. Learned counsel for the applicants/ accused has argued that the applicants/ accused are innocent and have been falsely implicated by the complainant and the police with mala fide intention. Per learned counsel the names of the applicants/ accused did not transpire in the F.I.R. and no description of the applicants/accused were mentioned in the F.I.R. The F.I.R. has been lodged with the delay of more than four hours and statement under section 161, Cr.P.C. of the complainant was recorded on 2-5-2010, in which he has repeated the facts as narrated earlier in the F.I.R. Similarly statements under section 161, Cr.P.C. of other P.Ws. namely Ahmed Siraj, Muhammad Nadeem Shah and Mujahid Hussain were also recorded on 2-5-2010, in which no allegations were made against the applicants/accused. Per learned counsel as per the contents of F.I.R. and statements under section 161, Cr.P.C. the incident was unseen and there was no direct or indirect allegations against the applicants/accused. Per learned counsel supplementary statements under section 161 Cr.P.C. of complainant and P.W. Ahmed Siraj were recorded on 6-5-2010 after the delay of tour days in which for the first tine the applicants/accused have been falsely implicated for mala fide reasons. The learned counsel has argued that the alleged incident took place in the darkness of the night and there were no independent witness and as per the F.I.R. allegations had been made against Kashif Dado and other unknown persons and surprisingly Majid and Kashif Dado have not been interrogated by police. Per learned counsel subsequent statements under section 161, Cr.P.C. on which basis the applicants/ accused have been implicated, are of closed relatives of complainant, as such they are interested witnesses. Per learned counsel no recovery of any weapon has been made from the applicants/accused and the empties of different weapons have been allegedly recovered from the place of incident, although it was alleged that only one person had fired upon both the deceased persons. In support of his contention learned counsel has relied upon the case law reported in 2003 SCMR 1419. The Learned counsel for the complainant has argued that delay in lodging of F.I.R. has been fully explained in the F.I.R. Per learned counsel the empties were recovered from the place of incident. Per learned counsel applicant accused Naeem Shamshad has made false statement as to his presence in the Civil Hospital and there was enmity between the applicant/accused. Naeem Shehzad and deceased Ishrat Hussain. Learned counsel has prayed for dismissal of the bail applications and in support of his contention has relied upon the following case laws:-- (1) PLD 2009 SC 427; (2) 2001 PCr.LJ 1679, (3) 2010 PCr.LJ 1431, (4) 2002 PCr.LJ 289 and (5) 2001 PCr.LJ

134. Learned D.P.-G has adopted the arguments of learned counsel for the complainant and opposed the confirmation of bail on the grounds that empties have been recovered from the scene of offence, the applicants/accused have been named in the supplementary statements and the said offence falls within the prohibitory clause. I have heard both the learned counsel for the parties as well as the learned A.P.-G and have gone through the record as well as case laws. As per the F.I.R. and statements under section 161, Cr.P.C. of complainant and P.Ws. namely Ahmed Siraj, Muhammad Nadeem Shah and Mujahid Hussain recorded on 2-5-2010, the names of applicants/accused do not appear, nor any role have been assigned to them and no allegations were made against them. There were no eye-witnesses to the said incident and no description of the alleged applicants/ accused were given in the F.I.R. The subsequent statements under section 161, Cr.P.C. of complainant as well as P.Ws. namely Ahmed Siraj and Muhammad Usman the brother and father of deceased Asghar Siraj recorded on 6-5-2010 in which the applicants/accused have been nominated for the first time are contradictory to the earlier statements. There is unexplained delay of four days in recording the subsequent statements under section 161, Cr.P.C., which creates doubts as to the veracity of subsequent statements. It is well settled law that delay in recording supplementary statements of the informants, giving different version after lodging the F.I.R. would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and consultation and the same will adversely affect the prosecution case. There is nothing on record to show that any weapon or the motorcycle allegedly used in the crime has been recovered from the applicants/accused. The alleged recovery of different type of empties from the place of the alleged incident do not prima facie support the case of the prosecution as allegedly only one 'person had fired upon both the deceased. As per F.I.R. the complainant has shown his suspicion upon one Kashif Dado and other unknown persons, who along with Khalid have not been interrogated by police. The truth or otherwise of the plea of alibi taken by the applicant/accused Naeem Shamshad will be considered and decided by the trial Court after recording the evidence of the parties. For the aforesaid facts and discussion it is my tentative view that there is reasonable doubt as to the guilt of the applicants/accused in the commission of the offence and a case for further inquiry within the meaning of section 497(2), Cr.P.C. has been made out. Accordingly the interim pre-arrest bails granted to the applicants/accused are hereby confirmed on the same terms and conditions. The trial Court should not be prejudice or influenced by the above discussions which are only tentative and should decide the case expeditiously in an equitable manner, based on the material on record and evidence to be adduced at trial. H.B.T./N-3/K Bail confirmed.