2023 P Cr (PLP)

AFTAB AHMED GORAR, J.

The applicants, booked in Crime No.116/2022 under section 302, P.P.C. registered with Police Station Docks Karachi were admitted to pre-arrest bail vide order dated 07.06.2022 and today the matter is fixed for confirmation of said order.

2. Learned counsel for the applicants while reiterating the grounds mentioned in the memo of bail application submitted that after obtaining the pre-arrest bail, the applicants are regularly attending the trial court as well as this court and not misused the concession of pre-arrest bail. Learned counsel for applicants submitted that the names of applicants are not mentioned in the FIR and they have implicated in this case by the complainant in his further statement under section 161, Cr.P.C. which shows his mala fide. He argued that there is nothing on record which shows that location of the present applicant at the place incident. He prayed that the pre-arrest bail granted to the applicants vide order dated 07.06.2022 may be confirmed.

3. Learned counsel for the complainant as well as learned Assistant Prosecutor General, Sindh opposed the confirmation of bail but could not controvert the submissions of learned counsel for the applicants.

4. Admittedly the names of applicants are not appearing in the FIR; no marks of identification OR descriptions of unknown accused persons have been mentioned in the FIR. However, for first time names of applicants were introduced by the complainant in his further statement recorded under section 161, Cr.P.C. which was recorded belatedly i.e. after ten days wherein too no active role has been assigned to the applicants. In case of Muhammad Rafique and others v. The State and others (2010 SCMR 385) the Hon'ble Supreme Court of Pakistan has discussed the value and veracity of "further statement" and has observed as under: "As regards supplementary statement, P.W. 17 took names of 10 more accused persons from the names he took in the FIR, the same can be treated as statement under section 161, Cr.P.C. that can only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and deliberation to falsely involve the accused. This point was examined by this Court in the case of "Falak Sher v. State 1995 SCMR 1350", wherein it has been observed that, "any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eye-witnesses as well as for false implication". The said rule was reiterated in subsequent decision of this Court in the case of Khalid Javed v. State 2003 SCMR 1419 and further observed that such witness would be unreliable."

5. Similar point was examined by this Court in the case of "Sohno Bullo v. The State" 2012 PCr.LJ 986 (Sindh), and while granting bail to accused, it was observed as follows: "name of accused had not been mentioned in the FIR and he was implicated after eleven days of the occurrence by witnesses in their statements recorded under section 161, Cr.P.C, therefore, reasonable grounds existed that the name of accused had been implicated after due deliberation and consultation and possibility of his false involvement could not be ruled out; contents of FIR revealed that all three prosecution witnesses were present at the place of occurrence and they had seen the unidentified accused persons but they did not nominate accused in the FIR and took eleven days to acknowledge the accused and implicated him in their statements, which created doubt in the prosecution case".

6. This is a bail before arrest and applicants were admitted to pre-arrest bail vide order dated 07.06.2022 and today the matter is fixed for confirmation of said order. No compliant of misuse of concession of bail or tempering the record has been pointed out. The applicants are regularly appearing in the case before this court as well as trial court, which fact is clear from the record. It is not out of context to mention here that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive and therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial. The punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until duly found guilty. It needs not to re -emphasize that the purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial. Even otherwise, life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, as has been observed by the Hon'ble Supreme Court of Pakistan in the case reported in PLD 1989 SC 585.

7. At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail. Wisdom is sought from the case titled Yar Muhammad v. The State and another reported in 2004 YLR 2230. From tentative assessment of all the above factors and the material available on record the case of applicants appears to be one of further enquiry in terms of subsection (2) of section 497, Cr.P.C.

8. Keeping in view the facts and circumstances of the case, the interim pre-arrest bail granted to applicants vide order dated 07.06.2022 is confirmed on same terms and conditions. The instant Criminal Bail Application stands disposed of. SA/S-76/Sindh Bail granted.