2014 PLP 2148 (YLR)

HASAN FEROZ J.

The applicant Liaquat through this bail application has impugned the order dated 3-10-2013 passed by learned Sessions Judge, Shaheed Benazirabad in Criminal Bail Application No. 998 of 2013 whereby bail after arrest has been declined to him in Crime No.18/2013 registered at Police Station Jam Dattar for the commission of offences under section 302, 34, P.P.C.

2. Brief facts of the prosecution case are that on 25-5-2013 at 2300 hours complainant, his nephew Dhollan (deceased) aged about 35 years, relatives Saleem and Abbas were present in the house when at 06:00 p.m. there arrived Liaquat Majeedano having hatchet in his hand who asked Dholan that he has work with him and he may accompany him and then both of them went out of the house. At about 08.30 p.m. they heard cries, on which the complainant and his relatives Muhammad Saleem and Abbas went running towards the cries and they saw on the light that Liaquat,

2. Barkat having hatchets in their hands and

3. Shoukat having lathi in his hand were causing blows to Dholan. Complainant party beseeched them in the name of Holy Quran and within their sight Dhollan fell down on the ground by raising cry, on which accused persons went along with their hatchets and lathi. The complainant saw that Dholan had died who was having injuries on his head and right side ear cut and at the back of his head was having hatchet injuries.

3. Mr. Abdul Sattar Kazi learned counsel for the applicant has contended that common role has been assigned to the accused persons which include applicant and all the three accused of similar role were arrested, out of them two have been let off by the police and matter being of collective role assigned; that there is inordinate delay in recording of statements of P.Ws., which has been depreciated by the superior Courts and in that regard reliance has been placed by Mr. Kazi on 1993 SCMR 550 wherein statements of witnesses in the Court in which improvements are made to strengthen the prosecution case held not to be worthy of reliance. Mr. Kazi has contended that the alleged incident is said to have taken place on 25-5-2013 while statements of P.Ws. Huzoor Bux and Chhuto under section 61, Cr.P.C. were recorded on 6-6-2013 after more than 12 days and statements of P.Ws Abbas and Muhammad Saleem were recorded on 9-6-2013 after delay of 15 days, and such delay makes the case to be one of further inquiry and further contended that on similar role two of the accused have been let off by the police therefore, consistency also attracts to the case of present applicant. 4 Learned Assistant P.G. has not controverted with regard to the consistency of two released accused persons with the present applicant/accused however, he opposed the bail to the present applicant/ accused.

5. On being notice to the complainant, he appeared and was asked to engage a counsel to oppose this bail application to which he replied that he does not want to pursue this matter.

6. During course of investigation accused Barkat to whom also role of causing hatchet injuries to the deceased was ascribed in the F.I.R. has been let off along with Shoukat Ali having ascribed the role of causing lathi blows to the deceased. From the F.I.R. it is clear that role ascribed to the present applicant/accused of causing hatchet injuries to the deceased is exactly same as that of Barkat let off by the police.

7. The grounds of further enquiry gets support of two P.Ws. namely Huzoor Bux and Chhuto, whose statements were recorded under section 161, Cr.P.C. on 6-6-2014 after a delay of about more than 12 days wherein they have stated that the cries attracted them and they went at the place of incident. Out of both the witnesses, one has stated that he saw applicant/accused Liaquat having hatchet in his hand was returning to his house while dead body of deceased was lying on the ground whereas other P.W says same story with addition that the applicant/accused was having blood-stained hatchet in his hand. On 9-6-2014 statements of P.Ws Abbas and Muhammad Saleem were also recorded under section 161 Cr.P.C. after a delay of 15 days, whereby they have exonerated the accused Barkat having similar role to that of presents applicant and Shoukat. There is also no explanation as to why statements of witnesses after such long period of 12 to 15 days were recorded. It is well-settled principle of law that if a statement is recorded after sufficient period and the delay is not explained, then it affects the veracity of witnesses and prosecution case. Reliance is placed on Muhammad Khan v. Moula Bux, 1998 SCMR 570 and Syed Saeed Muhammad Shah v. State 1993 SCMR 550.

8. Furthermore, there is delay in lodging the F.I.R., as the incident took place on 25-5-2013 at 08:30 p.m. whereas the F.I.R. was lodged on 'the-same day at 2300 hours when the Police Station is at a distance of about 15/16 kilometer, therefore, deliberation and consultation cannot be ruled out at this stage. The alleged explanation will be subject to scrutiny at the trial Court.

9. I have in my consideration that in the peculiar facts and circumstances the case of prosecution runs under the ambit of further enquiry and the applicant/accused has been able to make out a case for bail, therefore, he is granted bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rupees two hundred thousand only) and P.R. Bond in the like amount to the satisfaction of trial Court. The observations made hereinabove are tentative in nature and will not influence the trial Court at the trial. In the above terms, bail application stands disposed of. MWA/L-3/Sindh Bail granted.