1999 P Cr (PLP)

Brief facts as stated in the F.I.R. are that on 28-11-1997 at 1930 hours, one Imam Bux son of Rakhyal lodged a complaint that he is a Taxi Driver of one Nasir Hussain Shah at Rohri Taxi Stand and on that day when he was standing at the Taxi Stand at about 12-00 noon, four persons came and hired his taxi for Ghouspur in the sum of Rs.500 (Rupees five hundred) and thereafter, they proceeded to Ghouspur. At about 4-00 p.m. when he reached Shikarpur, one of the four persons left the taxi while the three remaining persons proceeded for Gouspur. Later on these three persons tied him down with the belt of his trouser and left him on the side of a Bund and snatched away his vehicle. Subsequently, on his cries some persons came and untied him. When the complainant was proceeding towards the police station of the jurisdiction, he saw a police mobile and stopped it and informed them about the incident and such information was conveyed to all other concerned quarters on wireless set, while he proceeded in the police mobile towards the police station. After some time, D.S.P. Mehmoodabad, Ghulam Shabbir Khoso alongwith his staff recovered the stolen vehicle near Shikarpur Shaikh Farm and also arrested two accused persons, who were later on brought to Police Station Napar Kot alongwith vehicle. The accused persons confessed their guilt and disclosed their names as Ali Sher son of Muqeem Jatoi and Imam Bux son of Ali Mardan Gopang while for the third person they disclosed his name as Rafique Ahmed son of Mohrram Ali. After handing over the accused persons and papers to S.H.O. Napar Kot, D.S.P. Mehmoodabad went away and such F.I.R. was lodged about snatching of car by the accused persons. A bail application on behalf of the applicant was moved before the trial Court which was rejected by the learned IInd Additional Sessions Judge, Shikarpur vide his order, dated 16-4-1998. Thereafter, another bail application was also moved on behalf of the applicant which was dismissed by the learned 1st Additional Sessions Judge, Shikarpur vide his order, dated 15-7-1998. Heard the learned counsel for the applicant who contends that after the. rejection of first bail application of the applicant, the complainant Imam Bux son of Rakhyal has sworn an affidavit before the learned Sessions Judge, Shikarpur on 30-6-1998 wherein he has narrated the story of the incident, dated 28-11-1997. However, about the applicant, he has stated that the applicant was not arrested by the police in his presence nor any identification of the applicant was sought by the police from him, the applicant was not present at the time of incident alongwith other accused persons and that if he is granted bail he has no objection for such grant of bail. The learned counsel with reference to such affidavit of complainant argued that the complainant is the main witness of the prosecution and after filing of this affidavit, the whole case of the prosecution against the applicant stands shattered and this is a case for further enquiry, therefore, the applicant may be enlarged on bail. The learned counsel has placed his reliance on, the case-law reported as Nawaz and another v. The State 1989 PCr.LJ 1773 and Manzoor and 4 others v. The State PLD 1972 SC

81. Mr. Sher Muhammad Shar the learned A.A.-G. while opposing this bail application has submitted that filing of such affidavit by the complainant amounts to tampering with the prosecution- evidence and that there are many other eye-witnesses of the incident including D.S.P., Mehmoodabad and other officials, who apprehended the applicant and the other accused alongwith stolen vehicle and in such circumstances, the applicant is not entitle for the concession of bail. The learned counsel in support of his contention also referred to the case-law reported as Naseer Ahmed v. The State PLD 1997 SC

347. I have considered the arguments advanced by the learned counsel and perused the relevant record. From the perusal of the F.I.R. and other record it is evident that the applicant alongwith other accused Ali Sher son of Muqeem Jatoi was caught red-handed with the stolen vehicle and his name appears in the F.I.R. The arrest of the applicant was made by the police party headed by S.D.P.O., Mehmoodabad and statements under section 161, Cr.P.C. of Ayaz Ahmed, Abdul Wahab, Zamir Hussain Abro, Manzoor Ahmed and Allah Bux, Gunman of S.D.P.O. have been recorded and they have fully implicated the applicant in the commission of crime. In the case of Naseer Ahmed v. The State PLD 1997 SC 347, the Honourable Supreme Court of Pakistan has taken into consideration the question of filing of affidavits at the bail stage and has observed as under:-- .. We do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that they would still be examined in the trial Court as witnesses where they MOIL would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i.e. statements of four injured eye-witnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30 bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of ball application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits." From the above observations of the Honourable Supreme Court of Pakistan, it is clear that in the circumstances when there is 'other evidence available, filing of affidavit by one of the prosecution witness or the complainant cannot be considered as a valid ground for grant of bail to the accused persons and at the stage of bail such affidavit or statement is to be examined and considered with care and caution. Further in a recent decision reported as Muhammad Shafique v. The State 1998 PCr.LJ 1299 an Honourable Judge of this Court has observed as under:-- "A scrutiny of the above definitions would reveal that acts of terrorism cover actions which cause or are calculated to cause alarm, fright, dread, panic, horror, fearfulness etc. Car snatching at gunpoint is covered by such definition of terrorism. We are all witnesses to a decay and decline in the law and order situation coupled with a hike in car snatching through show of force by individuals or mobs. The crime of car snatching and certain others have become a menace to the society and we are all hostages to such criminals. Though such crimes are directed against individuals who are the victims but in a wider context they affect the society at large. Car-snatching is, thus, a crime against the society in view whereof the Court has to be cautious in granting bail as mandated by the Supreme Court in Imtiaz Ahmed v. The State PLD 1997 SC 545. " In the instant case also, the applicant is involved in a heinous crime a car snatching. His name is appearing in the F.I.R. and specific role has been assigned to him and he was caught red-handed alongwith stolen vehicle. In such circumstances, there are no reasonable grounds to believe that the applicant is not involved in the commission of crime. The case-law cited by the learned counsel for the applicant is on different facts and has no relevancy to the facts and circumstances of this case Accordingly, this bail application is dismissed. Needless to mention that observations made in this order are of a tentative nature and the trial Court shall not be influenced with these observations while proceeding with the case. H.B.T./I-51/K Bail application dismissed