2007 PLP 1127 (MLD)

The aforesaid Bail Applications arising out from different crimes viz. 123 of 2006 and 124 of 2006 as allegedly involvement of the present applicant is shown in both crimes and also both crimes are off shoot of each other, therefore, both applications were heard together and disposed off by this common order. The Applicant Muhammad Amin is facing trial in two Crimes viz. Crime No.123 of 2006 Offences punishable under sections 365, 302, 324 & 353, P.P.C. and Crime No. 124 of 2006 Offences punishable under section 9(c) Control of Narcotic Substances Act, 1997. Brief facts of the case are that complainant Mst. Rehana lodged F.I.R. No. 123 of 2006 on 26-9-2006 at 07Q0 hours under sections 365, 302, 324, 353, P.P.C. regarding the kidnapping and murder of her niece Mst. Fozia alias Shumaila at PS Sobhordero. Thereafter SIO Sikandar Ali Chang of Police Station Sobhodero along with the complainant Mst. Rehana and his subordinate staff went towards the pointed place of incident and there police party found one dead-body of Mst. Fozia alias Shumaila lying on the National Highway Road. During investigation the police party secured 30 bore pistol, dead-body of the deceased Mst. Fozia alias Shumaila and also secured 60 Kg. Charas wrapped in plastic bags from Car. Out of which 10 grams of charas was detected for chemical analyzer. Thereafter F.I.R. No. 124 of 2006 under 9-C CNS Act, 1997 was separately lodged on behalf of the State by complainant at PS Sobhodero in which the applicant Muhammad was nominated as an accused. After registration of above-mentioned F.I.Rs. applicant surrendered himself before this Court for grant of pre-arrest bail and this Court vide order, dated 6-12-2006 and 11-12-2006 respectively granted him interim pre-arrest bail. Contentions of Mr. Farman Ali Kanasrio learned counsel for the applicants are that it is an admitted fact that police party has tired on the vehicle in which the deceased and complainant were travelling and possibility that the deceased got injury from the firing of police cannot be ruled out. He further submits that Mst. Rehana has filed Application under section 22-A and B, Cr.P.C. for registration of F.I.R. against the police officers for committing murder of Mst. Fourzia alias Shumaila. He further submits that it is strange that inspite of exchange of firing the police did not follow the Car of Applicant and allow him to go. He further submits that no recovery was made from the applicant or on his pointation and the only evidence available is the statement of Mst. Rehana who has resiled from her statement and has exonerated the applicant and has implicated the police and made allegation against them. He submits that in view of subsequent statement of Mst. Rehana a case of further inquiry has been made out and there appears to be no reasonable grounds for believing that the applicant is guilty of an offence falling under the prohibitory clause of section 497(1), Cr.P.C. The learned counsel for the applicant has relied upon the following reported cases:-- (1) Qadir Bakhsh and 5 others v. The State (2006 PCr.LJ 1251). (2) Muhammad Farooq Khan v. The State (2007 PCr.LJ 89). On the other hand Mr. Habibur Rehman Shaikh, learned A.A.-G. has submitted that no enmity and mala fide has been shown towards the police and no ground for bail before arrest has been urged. He submits that F.I.Rs. were lodged on behalf of Mst. Rehana and the name of the applicant with specific role is appearing in the F.I.R. He further submits that mere resiling of Mst. Rehana from her stand does not entitle the applicant for concession of bail. He relied upon the reported case of Naseer Ahmed v. The State (PLD 1997 SC 347). We have heard learned counsel for the parties and perused the record made available before us. The F.I.R. was lodged on the behest of Mst. Rehana who has filed her affidavit and resiled from the story narrated in the F.I.R. and has given a totally new story. As per the facts narrated in the F.I.R. No. 123 of 2006 the deceased Mst. Fouzia alias Shumaila was sitting on the front seat adjacent to the seat of the driver and has got injury on her left ear which in normal course appears to be not possible. However as per the allegation in the F.I.R. the injury was caused by the pistol of the applicant and the police has also recovered three empties from the Car. At the bail stage the deeper appreciation of evidence is neither desirable nor permissible and the facts has to be taken at its face value. The medical report has supported the contents of the F.I.R. In the medical report the doctor has stated that charring present and the distance between injury and weapon is 1-1/2 feet. The investigation has recorded the statements of P.Ws. who are all police personnels but none of them have stated that police had fired upon the vehicle or upon the driver. There is no material available on record to suggest that there was cross firing between the applicant and the police. In her F.I.R. complainant Mst. Rehana has clearly named the applicant. In the F.I.R. she has further stated that he (applicant) belongs to her vicinity and forced them to sit in the Car. In her Affidavit she stated that one unknown Taxi driver along with a car came there and they boarded in the car at hire of Rs.100. It is strange that a woman instead of sitting on the back seat has sat on the front seat along with the driver who was not known to her. This fact clearly established that Mst. Rehana for the reasons best known to her has filed her affidavit to cause prejudice to the case of the prosecution. The other question is why the police has falsely implicated the applicant. In the bail application no cause has been shown for false implication of applicant. In absence of any malice on the part of the police the second version of Mst. Rehana is not acceptable. In the reported case of Qadir Bakhsh and others v. The State 2006 PCr.LJ 1261 the bail was granted to the accused on the ground that big quantity of Charas could have its importance if the applicants were connected with it by cogent evidence. In the reported case of Muhammad Farooue Khan v. The State 2007 PCr.LJ 28 the bail was granted and it was held that ban contained in section 51 of CNS Act, 1997 would be attracted only when there were reasonable grounds for believing that accused was guilty of the alleged offence and it was further held that High Court was competent to grant bail in appropriate case, notwithstanding the provision of section 51 of CNS Act, 1997. In this matter Mst. Rehana clearly stated that the car driven by applicant and he told her that car contained Charas, which was subsequently recovered from the said Car. The allegation in the F.I.R. is sufficient to connect the applicant with the crime and recovery of Charas. A huge quantity of Charas cannot be falsely foisted upon the applicant. As regard to the grant of bail on the basis of affidavit of eye-witnesses, in the reported case of Naseer Ahmed y. The State (PLD 1997 SC 347) the Honourable Supreme Court has held as under:-- A trend has developed nowadays that eye-witnesses sometimes take a somersault and give statements which are different from prosecution case and sometimes 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 quotation it is clear that bail is to be granted on the basis of tentative assessment of material available on record. In another reported case of the State through Force Commander ANF Rawalpindi v. Khalid Sharif (2006 SCMR 1265) the Honourable Supreme Court has held as under:-- It may also be noted that accused persons, particularly involved in narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from their previous statements, therefore, while considering the same the Court is required to see facts of each case in its peculiar perspective to ascertain as to whether the accused is involved in the commission of offence or not? Both the witnesses Zaheer Ahmed and Ijaz Muhammad at the time of investigation of the case furnished incriminating evidence to prima facie, conclude that respondent is involved in the commission of offence, falling within the mischief of section 9(c) of the Act, 1997. From the above quotation of judgments it is clear that the bail applications are to be disposed of on the basis of material available on record and the Court is required to form a tentative assessment of the G evidence available on record. In this case the complainant herself has resiled from her statement and is not supporting the contents of the F.I.R. and is alleging that the deceased died due to firing of police. In the bail application as well as in the affidavit of Mst. Rehana no reason has been assigned for false implication of applicant, in view of non-assigning of reason the second version of Mst. Rehana cannot be believed and the applicant cannot be exonerated. The other point urged by the learned Addl. A.G. is that no ground with regard to bail before arrest has been urged. The applicant in his affidavit filed in support of bail application No.666 of 2006 has stated as under:-- (3) That the police is hunting for my arrest since last few days, with mala fide intentions and ulterior motives and in collusion of the complainant party. (4) That I will be disgraced, humiliated and maltreated, if arrested at the hands of police concerned. In another bail application no such ground was taken and no malice has been alleged against the police. The above statement in one bail application without any reason and cause for the police to arrest the applicant for ulterior motives is not sufficient to conclude that applicant has pleaded and urged the ground necessary for grant of bail before arrest. The applicant has failed to establish mala fide on the part of the police. Unless the applicant established that police wants to arrest him for ulterior motives coupled with the fact that material is available on record to connect him with the crime he is not entitled for grant of pre-arrest bail. In view of above we are satisfied that there are no reasonable grounds for believing that the applicant has not committed an offence falling under the prohibitory clause of section 497, Cr.P.C. and section 51 of Control of Narcotic Substances Act, 1997. The bail applications are dismissed and the earlier orders, dated 6-12-2006 passed in Cr.B.A. No.666 of 2006 and 11-12-2006 passed in Cr.B.A. No.669 of 2006 granting interim pre-arrest bail to the applicant are hereby recalled. H.B.T./M-44/K Application dismissed.