2004 P Cr (PLP)

Applicant Irshad has been charged with an offence punishable under sections 302, 147, 148, 149, P.P.C.

2. The case of prosecution as disclosed in the F.I.R. lodged by complainant Hadi Bux is that the complainant, his relatives Habibullah (the applicant), Abdul Nabi and Muhammad Hassan were having a chit chat in the Veranda in the house when at 12‑30 midnight there was a knock at the door. The complainant opened the door and found Azizullah armed with kalashnikov, Sikander armed with a shot gun, Irshad (the applicant) armed with T.T. pistol, Jatoi and Gul with guns, Manthar and three others with kalashnikovs who immediately entered the .house and out of them Azizullah, Sikander and Irshad fired at Habibullah and killed him. The complainant party due to fear kept quiet. In the morning the complainant reported the matter to police mentioning in the F.I.R. that he had left Muhammad Hassan and Abdul Nabi, the eye‑witnesses, at the place of incident. During the investigation, Jatoi and Sikander were let off by police but later on they were joined and now they are on bail. Applicant was arrested on 24‑1‑2003.

3. I have heard Mr. Sardar Khan Lashari learned counsel for the applicant and State Counsel.

4. Mr. Sardar Khan Lashari, learned counsel for the applicant contended that the Investigating Officer was shown two places of incident when he inspected the site; one upstairs and the other on the ground floor which demonstrated material inconsistency. Secondly, the witnesses Muhammad Hassan and Abdul Nabi were said to have been left at the place of incident by complainant but they did not appear before police for recording their statement under section 161, Cr.P.C. until 21‑1‑2003 whereas the incident had taken place on 9‑11‑2003, this delay creates a doubt which may be resolved in favour of the applicant at this stage. He further contended that the Investigating Officer has recorded the statement of a lady namely Mst. Subhani who was residing in the adjoining house, who stated that deceased Habibullah had illicit terms with the ladies and he was a desperado type of man. This fact according to Mr. Lashari cannot be ignored as far the question of bail is concerned. He relied. on Syed Saeed Muhammad Shah v. State 1993 SCMR 550 and Wali Muhammad v. State 1982 PCr.LJ 798 in support of his contention.

5. Learned State Counsel submitted that there is evidence of three eve‑witnesses, but in view of the above circumstances, a case of further enquiry is of course made out and, therefore, he would concede to grant of bail.

6. The contentions have been considered in the light of material on record. Admittedly, the eye‑witnesses Muhammad Hassan and Abdul Nabi, whose names are mentioned in the F.I.R. and according to the complainant they were left at the place of incident when the latter appeared at the police station for report, were not examined under section 161, Cr.P.C. on that day, but their statements were recorded on 21‑1‑2003 that is to say after two months and 11 days. The explanation by the Investigating Officer, as recorded in the police diaries, is that the complainant did not show interest in the case. It is also noted that Mashirnama of place of occurrence displays a different picture of the scene describing two locations in respect of the place of occurrence. The lady residing in the adjoining house has also given a version about illicit terms between‑deceased and some ladies, and although she is not an eye witness, but in view of aforementioned circumstances this version which has been recorded under section 161, Cr.P.C. cannot altogether be ignored at this stage, for the bail plea is to be examined in the light of material collected during investigation. In such a situation the delay in recording of statements under section 161, Cr.P.C. of eye‑witnesses is of material significance for the purpose of bail. Learned State Counsel has also conceded to grant of bail.

7. In view of the circumstances enumerated above, the rule laid down in the aforesaid authorities lends support to the bail plea. The application is accordingly allowed. The applicant be released on furnishing surety in the sum of Rs.3,00,000 and P.R. bond in the like amount to the satisfaction of trial Court. H. B. T./1‑5/K Bail granted.