2016 PLP 1 (YLRN)

S. 497(2)

Penal Code (XLV of 1860), Ss.302 & 34

Qatl-i-amd, common intention

Bail, grant of

Further inquiry

Incident was un-witnessed

Name of accused did not transpire in the FIR

Supplementary statement of complainant was recorded after about 17 days of occurrence; and same was based upon the statement of co-accused during investigation before the Police

Evidentiary value of such further statement of the complainant, was yet to be determined at trial

Nothing incriminating was recovered from accused

Reasonable doubt arose with regard to participation of accused in the crime or about the truth or the probability of prosecution case; and evidence proposed to be produced in support of the case, at bail stage

Investigation of the case having already been finalized, custody of accused in jail was not likely to serve any beneficial purpose at bail stage

No reasonable grounds were available for believing that accused had committed the alleged offence

Prima facie, case against accused required further inquiry as contemplated under subsection (2) of S.497, Cr.P.C.

Bail was granted to accused, in circumstances. [Paras. 7 and 8 of the judgment] Syed Amanullah Shah v. The State and another PLD 1996 SC 241; Allah Ditta v. The State and others 2012 SCMR 184; Tazeem Akbar v. The State and another 2011 MLD 1017 and Ziaullah v. The State and another 2012 MLD 319 ref. Hassan M. Abidi for Applicant. Zahoor Shah, A.P.G. for the State. Faisal Ahmed A. Memon for the Complainant. ORDER NAIMATULLAH PHULPOTO, J.

Applicant/accused Akbar son of Qasim seeks bail after arrest in Crime No.33/214, registered at Police Station Gharo, District Thatta, for offences under sections 302, 34, P.P.C. Brief facts of the prosecution case as disclosed in the F.I.R. are that Rasool Bux (deceased) was son of the complainant and he had friendship with Kangal Mirbahar. There was matrimonial dispute of Karamuddin with Complainant party. On 05.05.2014, at night time, Rasool Bux (deceased), the son of the complainant told to the complainant that he was going to the house of Akbar Khaskheli (present accused). He left home and he did not return back. On the next morning, complainant along with PWs Moledino, Niaz Ahmed and others started search for Rasool Bux. At 07:00 a.m. dead body of deceased Rasool Bux was found lying in land bearing Survey No.401. Deceased had sustained injuries by means of hatchet at various parts of his body. Complainant party found one lathi lying at the place of wardat. Thereafter, such information was conveyed to ASI Manzoor Ali Chandio of Police Station Gharo. He reached at the place where dead body was lying. Thereafter, dead body was dispatched to Makli Hospital for postmortem examination and report. Complainant in the FIR stated that he came to know that Abdul Latif son of Moledino was not available at home. FIR of the incident was lodged by the complainant by suspecting Karamuddin and his brother Wazir Ali with whom complainant had dispute over matrimonial affairs. It is further stated that applicant/accused Akbar was also involved in such conspiracy. FIR was recorded by SIP Mushtaq Ahmed of Police Station Gharo on 09.05.2014 at 1600 hours under sections 302, 34, P.P.C. After registration of FIR 161, Cr.P.C. statements of PWs Niaz Ahmed and Moledino were recorded. Supplementary statement of complainant was recorded on 2.05.2014 in which complainant has stated that co-accused Abdul Latif told him that accused Akbar was also involved in the commission of murder of his son Rasool Bux along with other accused persons. Co-accused Abdul Latif was arrested on 18.05.2014 and he produced hatchet on 19.05.2014 during interrogation used in the commission of offence. Applicant/accused Akbar was arrested by police on 13.05.2014, nothing was recovered from him. On the conclusion of investigation, challan was submitted against accused under sections 302, 34, P.P.C. Bail application was moved on behalf of applicant/accused Akbar before learned II Additional Sessions Judge, Thatta, the same was rejected by him vide order dated 6.08.2014. Thereafter, applicant/accused approached this Court. Mr. Hassan M. Abidi, learned advocate for applicant/accused Akbar contended that incident was un-witnessed, nothing incriminating was recovered from the possession of the accused Akbar. He has submitted that evidentiary value of supplementary statement of complainant is yet to be determined at trial. He has argued that statement of co-accused Abdul Latif in which he has implicated the present applicant/accused during investigation is inadmissible in evidence. He has submitted that no material has been collected by the IO to connect the applicant/accused in the commission of offence. In support of his contentions he has placed reliance on the cases of Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241), Allah Ditta v. The State and others (2012 SCMR 184), Tazeem Akbar v. The State and another (2011 MLD 1017) and Ziaullah v. The State and another (2012 MLD 319). Mr. Zahoor Shah, learned Assistant Prosecutor General Sindh, assisted by Mr. Faisal Ahmed A. Memon, learned counsel for the complainant, argued that applicant/accused Akbar has been implicated by co-accused Abdul Latif during interrogation by police. It is also argued that on the day of incident, deceased had gone to the home of applicant/accused Akbar. There is sufficient material to connect the applicant/accused in the commission of offence. Bail application has been opposed. I am inclined to grant bail to applicant/accused Akbar son of Qasim for the reasons that incident was un-witnessed. Name of applicant/accused did not transpire in the FIR. Supplementary statement of complainant was recorded on 22.05.2014 and same is based upon the statement of co-accused Abdul Latif during investigation before police. Evidentiary value of such further statement of the complainant is yet to be determined at trial. Applicant/accused Akbar was arrested on 13.05.2014 but nothing incriminating was recovered from him. Rightly reliance has been placed on the above cited authorities. In the case of Allah Ditta v. The State and others (2012 SCMR 184), Honourable Supreme Court has observed as under:

2. After hearing the learned counsel for the parties and going through the record we have observed that occurrence in this case had taken place during a night, the same had remained unwitnessed and the culprits had initially remained unknown. After about sixteen days of lodging of the FIR the petitioner and his two brothers namely Hussain Bakhsh and Sawan had been implicated in this case through a supplementary statement made by the complainant. One of the said brothers of the present petitioner namely Hussain Bakhsh has already been admitted to post-arrest bail by the Lahore High Court, Lahore vide order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 and the role attributed to the said co-accused was somewhat similar to that attributed to the present petitioner inasmuch as the said co-accused had allegedly held the deceased by his arm whereas the petitioner had allegedly pulled a rope around the neck of the deceased and, thus, they had both allegedly taken an active role in the murder in issue. The Lahore High Court, Lahore had found the case against the said co-accused namely Hussain Bakhsh to be one of further inquiry into his guilt and, thus, the same treatment ought also to have been extended to the petitioner as well. The learned counsel for the complainant and the learned Additional Prosecutor-General, Punjab appearing for the State have maintained that the case against the petitioner was distinguishable from that against the said co-accused because a mobile telephone set belonging to the deceased had been recovered at the instance of the petitioner but we have found that the said mobile telephone set had in fact been recovered from an open field and apparently nothing is available on the record so far to connect that mobile telephone set with the deceased. The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage." In the circumstances of present case, reasonable doubt arises with regard to participation of applicant/accused Akbar in the crime or about the truth or the probability about the prosecution case and the evidence proposed to be produced in support of the case, at bail stage, applicant/ accused Akbar cannot be deprived of benefit of bail. Investigation of this case has already been finalized and, thus, custody of applicant/accused in jail is not likely to serve any beneficial purpose at this stage. While relying upon the above cited authorities, it appears that there are not reasonable grounds for believing that applicant/accused has committed the alleged offence. Prima facie, case against applicant/accused requires further inquiry as contemplated under subsection (2) of Section 497, Cr.P.C. Bail is granted to applicant/accused Akbar son of Qasim, subject to his furnishing solvent surety in the sum of Rs.200,000/- (Two Hundred Thousand), and P.R. bond in the like amount to the satisfaction of trial Court. Needless, to mention here that the observations made hereinabove are tentative in nature and shall not influence the trial Court while deciding the case of the applicant/accused on merits. HBT/A-84/Sindh Bail granted.