2010 PLP 877 (MLD)

SARMAD JALAL OSMANY, C.J.

The applicant seeks post-arrest bail in F.I.R. No.15 of 2008, dated 15-3-2008 for offences under sections 302, 324, 147, 148, 149 and 504, P.P.C. registered at Police Station Matiari, District Matiari.

2. Briefly stated the facts of the prosecution case are that on the date of offence, viz., 15-3-2008, when complainant Muhammad Juman was present in his house with his wife Najma and his sisters Mst. Basra and Asma along with cousin Wahid Bux at about 1445 hours. Accused Ali Muhammad Detho with TT Pistol, Muhammad Soomar with pistol, Ghulam Hussain with pistol, Master Ghulam Majeed with rifle and Bachoo with gun entered their house and accosted them saying that they had prevented him to marry Mst. Najma, but he did so and today he will not be spared. At this accused Muhammad Yousaf Detho, Applicants/ Accused Muhammad Soomar and Khuda Dino fired at the complainant in order to kill him. However, he escaped to another room and during such firing his sister Basra receiving injuries at her chest and left arm who fell down while crying. Similarly, complainant's other sister Mst. Asma also received pellet injuries at her chest and right arm, who also fell down while crying. Their cries attracted the neighbours, Gul Hassan and Mitho who rushed towards the house raised hue and cry, whereupon the accused persons while abusing and firing in the air ran away. Mst. Basra succumbed to her injuries at the spot, whereafter she and Mst. Asma were taken to the hospital. Mst. Basra's dead-body was kept in the morgue and treatment was given to Mst. Asma who was injured.

3. Based on the foregoing facts, Mr. M. Ilyas Khan, advocate, appearing for the Applicants/Accused Master Ghulam Muhammad, Khuda Dino and Muhammad Soomar, has submitted that per the complainant three persons had fired due to which Mst. Basra lost her life and Mst. Asma was injured, i.e. Yousuf who was armed with country-made pistol, Khuda Dino with TT Pistol and Muhammad Soomar with TT Pistol. Consequently, at this stage the common intention of applicant/accused Master Ghulam Muhammad cannot be determined as he did not take any part in the firing and was only shown to be armed with a rifle. This is supported by the fact that no empty of rifle was found at the spot. Insofar as the case of other applicants/accused are concerned, viz. Khuda Dino and Muhammad Soomar, per learned counsel. Accused Yousaf has made a judicial confession, according to which he accompanied by Uris had gone to the house of the complainant on the ill-fated day and killed Mst. Basra while injuring Mst. Asma due to matrimonial enmity. Per learned counsel even at the bail stage, confession of co-accused can be taken into consideration per Abdul Malik v. State (1998 MLD 1307). Secondly, learned counsel has relied upon re-investigation of the case, according to which again the version of Accused Yousaf has been believed while innocence of all the other accused has been established. Learned counsel further says that the 161, Cr.P.C. statement of the prosecution witnesses were recorded after 13 days of the incident, which in itself becomes doubtful for which proposition he has cited Irshad v. State (2004 PCr.LJ 1246).

4. On the other hand, Mr. Imdad Haider Solangi, appearing for the complainant, has submitted that there cannot be any doubt as to the positive identification of the accused since both the parties are inter related and all the applicants/accused have been nominated in the F.I.R. itself, which was lodged timely along with specific role of each of the Accused. Further that there are three eye-witnesses of the incident in question, which fully support the F.F.R., viz. active role given to applicants Khuda Dino, Muhammad Soomar and co-accused Yousuf. Insofar as the case of Master Ghulam Muhammad is concerned, although he did not use his weapon but his mere presence at the scene of the incident establish his common intention. Finally, insofar as the re-investigation is concerned, learned counsel has submitted that ipsi dixit of the police authorities is not binding on the Court for which he has cited Liaquat Ali v. State (PLD 1994 SC 172).

5. Learned A.P.G. appearing for the State has fully supported the contention of the learned counsel for the complainant. His further submission is that insofar as the delay in recording 161, Cr.P.C. statement is concerned, when they are in consonance with the F.I.R. and explained any such delay is of no consequence, for which proposition, he has cited Abdullah Khan v. State (2001 PCr.LJ 1679). Further, per learned APG the confessional statement of accused Yousaf is against the record since the post-mortem report of the deceased shows that she sustained pellet injuries as well as one bullet injury.

6. I have heard the learned counsel as well as the learned APG and have perused the record with their assistance. Insofar as the case of applicant/accused Master Ghulam Muhammad is concerned, it would be seen that per settled law at the bail stage the common intention of an accused, which he has stated to have shared with the other accused in committing the crime in question, is always subject to further inquiry unless there is overwhelming evidence to the contrary. The evidence available at the moment is in the shape of the F.I.R. plus 161 and 164 Cr.P.C. statements of eye-witnesses, according to whom, no active role has been given to this accused except for being present at the scene of the crime fully armed. Hence, in my opinion at this stage, his case is one of further inquiry.

7. Insofar as the case of other applicants Khuda Dino and Muhammad Soomar is concerned, it would be firstly seen that in the F.I.R. besides them and other co-accused, Ali Muhammad was also nominated but subsequently in the 161, Cr.P.C. and 164, Cr.P.C. statements of the eye-witnesses, the latter was dropped, which would indicate that the prosecution witnesses are not speaking the entire truth. Secondly, as per Article 43 of Qanune-e-Shahadat, 1984, the confession of a co-accused is admissible and could be taken into consideration as circumstantial evidence provided the same was proved against the maker thereof. Although the stage of the proof of confession would no doubt come at the trial, however, the same could be taken into consideration along with all surrounding circumstances. In the present case, admittedly there was enmity between the parties over matrimonial affairs and as observed above, there is some possibility of false implication. Consequently, the confession of Yousaf, who had taken the, responsibility upon his shoulders for the murder of the deceased and causing injuries to Mst. Asma, cannot be ruled out of land. Hence, c in my opinion, the case of these two applicants, viz., Khuda Dino and Muhammad Soomar, is also one of further inquiry.

8. The above are the reasons for the short order passed earlier whereby this bail application was allowed and applicants were enlarged on bail. H.B.T./G-12/K Bail granted.