2011 PLP 1931 (MLD)

MUHAMMAD ALI MAZHAR, J.

The applicant has brought this bail application under section 497, Cr.P.C. in Crime No.307 of 2008, lodged under section 302, P.P.C. at Police Station, Kandiaro, District Naushahro-Feroze.

2. Succinctly, the facts of the case are that the complainant Abdul Hakim Ghanghro lodged the F.I.R on 4-12-2008, gist of which is reproduced as under:-- "It is complained that Arbelo son of Punhal Ghanghro aged about 30 years is my step son. He lives separately from me in his house with his brothers Nawab and Qurban. Nawab is doing business of cattle. Two days back he had taken Uzha cattle to Karachi for sale. Today in the night it was our turn of water rotation. I and my step son Qurban were attending the water rotation. We both had gone together. While the water was flowing, I and Qurban were returning back to send Arbelo to look after the flow of water so that we may take rest. On 4-12-2008 at about 0300 hours we entered into the door of his house. The electric bulbs were on and we saw that the main gate of the house and the door of the room of Arbelo were opened and two persons among whom one was armed with gun and the other with pistol, were sitting over Arbelo on his cot. We identified the persons having gun to be Nazir son of Bux Ali Ghanghro and also saw clearly the person armed with pistol and can identify him on seeing again. Then we raised cries. On the cries Noor Muhammad came there. We saw inside the room that Arbelo was lying on the cot flat and had died. We then saw that a shawl and a rope was tide around the neck of Arbelo. With the help of above witnesses we brought the dead body to Government Hospital and gave such information to the police. After complying with necessary requirements and after getting the dead body buried, I have now come and complain that accused Nazir Ghanghro and one unidentified person, whose face was open, whom we have clearly seen on the light of bulbs and can identify him on seeing again, without any reason have killed my step son Arbelo by strangulating him with a rope and shawl."

3. The applicant was declined bail by the learned trial Court vide order dated 16-3-2011.

4. I have heard Mr.Sardar Akbar F. Ujjan Advocate for the applicant and Mr.Syed Sardar Ali Shah, Assistant Prosecutor General for the State.

5. The learned counsel for the applicant argued that the applicant has been falsely involved by the complainant party due to enmity. He further argued that there is an inordinate and unexplained delay of 11 hours in lodging of the F.I.R. and without lodging of the F.I.R. all the formalities of preparing inquest report, mashirnamas were prepared, therefore, the delay in lodging of F.I.R. clearly suggests that the involvement of the applicant is false and fabricated. He argued that it was totally an unseen incident and the accused was later implicated after due deliberation and consultation. He further argued that both the alleged accused were armed with deadly weapons but instead of using the same in the commission of offence they strangulated the deceased which creates doubts in the prosecution case. The learned counsel further argued that the evidence of P.W. Ismail Ghanghro is hearsay evidence while the complainant and another P.W. Qurban are related inter se, therefore, the matter requires further enquiry. In support of his arguments, the learned counsel relied upon 2010 MLD 956, (Miandad v. State) in which, the learned single Judge of this court has held that the F.I.R. was belated 8 hours and no satisfactory explanation was forthcoming, therefore bail was granted in this case. He next relied upon 2010 PCr.LJ 992, (Mst. Shahida v. State) in which, the learned single Judge of this court held that unexplained delay in lodging F.I.R. of about 17 hours, particularly after burial and postmortem of the deceased raised doubt in the case of the prosecution. It was further held in this case that reasonable doubt being available in the case of the prosecution as made out in the F.I.R., same requires further enquiry and accused under the circumstances was entitled to the benefit of bail. The learned counsel further relied upon 2008 PCr.LJ 1444, (Jaffer Hussain v. State), in this matter, while deciding the bail application, the court held that no accused person can be called as history sheeter or a previous record holder until and unless the offence is proved against him and he is convicted in the particular offence. Mere pendency of criminal cases in the Court of law does not entitle the accused to be called history sheeter or record holder. Lastly, he relied upon 2010 PCr.LJ 572 (Muhammad Hassan v. State) in which, the learned single Judge of this court held that law for the purpose of bail is not to be stretched in favour of the prosecution. Benefit of doubt if any arising in the case must go to the accused even at bail state.

6. Conversely, the learned A.P.-G. argued that the incident was taken place on 3-00 a.m. on 4-12-2008 and the matter was reported to the police at 6-25 a.m. vide Entry No.31. The postmortem was conducted at 10-30 a.m. and F.I.R. was lodged at 2-00 p.m. on 4-12-2008. The learned A.P.-G. further argued that the applicant was armed with gun which he himself produced before the police and recovery was properly effected from him and he further argued that the postmortem report fully supported the ocular testimony and according to the remarks of medical officer the death was caused due to strangulation. The learned A.P.-G. further argued that the eye-witness has fully supported the version of the complainant in his statement recorded under section 161, Cr.P.C, therefore, he vehemently opposed the grant of bail.

7. In the F.I.R. the complainant has specifically narrated that he and Qurban were returning back to send the deceased Arbelo to look after the flow of water so that they may take rest and on the date of incident at about 300 hours when they reached inside the door of the house they saw that the main gate of the house and the door of the room of Arbelo were opened and two persons, out of them, one was armed with gun and another with pistol, were sitting over Arbelo on his cot and the complainant and Qurban both identified the applicant armed with pistol and they raised cries and saw that Arbelo was lying on the cot and a shawl and rope was tied around his neck and he was found dead.

8. Though, the learned counsel for the applicant argued that the applicant was falsely implicated in this case due to enmity but in the bail application not a single word has been alleged to show what kind of enmity is between the parties which resulted the false implication of the applicant in this case. The eye-witness has also supported the version of the complainant and the post-mortem report is also reflecting without any shadow of doubt that there was a mark of ligature on the neck of deceased at his mid level and medical officer has clearly mentioned that from the external and internal examination of deceased Arbelo, he is of the opinion that death of deceased occurred due to asphyxia as a result of strangulation.

9. At the stage of bail deep scrutiny of evidence is not permissible and nor is the requirement of law but at the same time the court of law is not precluded from tentative pursuing the evidence of eye-witnesses, recovery of weapons, medical evidence and other connected evidence if any to form a tentative assessment as to the accused is prima facie connected with the commission of offence or not. At the stage of deciding bail, the court needs not to enter upon the deep appreciation and examination of evidence. However, the question cannot be decided in vacuum and court has to look at the material available. If the answer is in positive keeping in view the tentative opinion that the accused is prima facie connected with the commission of the offence of murder or where the sentence provided is either death or life imprisonment, then refusal of bail is rule while grant of bail is an exception and there is no restriction on the court powers to assess the evidentiary value of the material placed before it. No doubt accused person is entitled to the benefit of doubt at bail stage also but doubt should be shown to exist on a cursory reading of evidence and law and this can be discerned by tentative evaluation of the material on record. The learned counsel argued that co-accused Zameer has been admitted to bail by this Court in Criminal Bail Application No. 86 of 2009. The bail was granted to him simply for the reason that his name was not mentioned in the F.I.R. while the present applicant has been specifically named and nominated in the F.I.R. The learned counsel also complained that more than 2 years have passed but the trial has not been concluded. This particular plea has been perfectly answered by the learned trial court in its order dated 16-3-2011 that after framing of charge on 22-9-2010, either the accused or his counsel sought adjournments on several dates of hearing on one or other pretext even on 16-3-2011, the learned defence counsel argued the bail application for its decision but failed to proceed with the trial although three material prosecution witnesses including the complainant were in attendance but subsequently the learned defence counsel moved an adjournment application, therefore, the learned trial court observed that the prosecution cannot be blamed for non-conclusion of the trial expeditiously and if the accused and his counsel cooperates with the court then the case could easily be decided on its merits.

10. The main thrust of the arguments of learned counsel that the F.I.R. was belatedly lodged but it reflects from the record that the incident occurred at 3 a.m. on 4-12-2008 and on 6-25 a.m. on the same date the matter was reported to police by the complainant vide Entry No.31. Postmortem was started at 10-30 a.m. and concluded on 11-50 a.m., however F.I.R. was lodged at 2-00 a.m. on the same date. The dead body was brought to the port-mortem by the head constable Muhammad Uris, vide letter No.311, dated 4-12-2008. The complainant and Qurban both are eye-witness. Under section 154, Cr.P.C, a statutory duty is cast upon officer in charge of police station to enter information regarding commission of any cognizable offence. The purpose of recording F.I.R. apart from setting law into motion, is also to provide basis for carrying out investigation in the right direction. Record shows that the complainant approached the concerned police station on the same day at about 6-25 a.m., to set the law into motion but instead of registering the F.I.R., his NC was registered vide Entry No.31 and in fact, in this report also, the complainant has named the applicant, therefore, no delay can be attributed to the complainant at this stage if the police has violated the mandatory provision of section 154, Cr.P.C. and instead of registering the F.I.R. at 6-25 a.m. registered the same at 2-00 p.m. on the same day. The case-law referred to by the learned counsel for the applicant on the ground of delay are distinguishable.

11. The medical certificate fully supports the version of the complainant and the cause of death is asphyxia as a result of strangulation. Since the specific role has been attributed to the applicant and he is named in the F.I.R., therefore, the applicant has no case for the grant of bail. Every hypothetical question which can be managed would not make the same a case of further enquiry simply for the reason that same can be answered by trial Court subsequently after evaluation of evidence. Accused in order to be release on bail must further show that there is no reasonable ground for believing that he has committed the offence as alleged against him. Mere possibility of further enquiry which exist, almost in every criminal case is no ground for treating the matter as one under subsection 2 of section 497, Cr.P.C. The case of further enquiry would only be made out when data collected by the prosecution is not sufficient to provide reasonable ground for believing that a prima facie case exists against accused.

12. The upshot of the above discussion leads me to a conclusion that there are no reasonable grounds to believe that applicant has been falsely implicated in the case. Consequently, the bail application is dismissed. Since the challan has already been submitted in the trial Court, therefore, the learned trial Court is directed to conclude the trial preferably within a period of 03 months. The observations made herein above are tentative in nature and would not affect the case of either party. H.B.T./N-43/K ail refused.