2010 PLP 829 (YLR)

ATTAULLAH KHAN, J.

Qismat Ali Khan and Wilayat Shah have applied for bail after failing to avail it from the fora below. Both of them are charged under sections 302/324/148/149, P.P.C. vide F.I.R. No.542 dated 6-9-2009, Police Station Naurang.

2. Briefly stated the facts are that on 6-9-2009 at `Shamvela' the occurrence took place in the vicinity of Police Station Naurang, District Lakki Marwat. The report was lodged by complainant Muhammad Yousaf son of Abdur Rauf while in injured condition. It is to be noted that the said Muhammad Yousaf after remaining in hospital succumbed to injuries on 8-9-2009. According to the complainant, now dead, at `Shamvela' after 'Iftar' someone knocked at the door of their house. He went out and saw accused Qismat Ali Khan, Wilayat Shah (petitioners) along with four others namely Mashal Khan, Saadullah, Raza Khan and Ajmal Khan duly armed with fire-arms. When the complainant reached near them, all of them opened firing with their weapons which hit him and he got injured. The firing attracted Mst. Beebo, mother of the complainant who was also fired at by all the accused and as a result, she also got injured and fell on the ground while his brother Rasool Khan escaped. According to the murasila, the complainant and his mother saw the occurrence. The motive disclosed is that in the morning the cattle of the complainant had caused damage to the crops of the accused party. This murasila was recorded in the hospital in the Emergency Room on the report of Muhammad Yousaf in injured condition. On the same day site plan was also prepared.

3. Contention of learned counsel for the petitioner is that the occurrence took place at `Shamvela' while the matter was reported at 2015 hours. According to him, there is a delay of more than one hour. He further argued that F.I.R. is based on murasila and the report based on murasila is always doubtful because of chances of deliberations and consultations in line with prosecution case it is further contended that the complainant has failed to identify fire-arms with which the accused were armed at the time of occurrence. It is also one of his arguments that the statement of injured witness has been recorded after one week of the occurrence and this has made the case doubtful. The learned counsel relied on the following case-law:--

1. Mst. Musarat Bibi and another v. The State 1992 PCr.LJ 158,

2. Muhammad Arif and 2 others v. The State 2004 YLR 33 Karachi.

3. Manazar Hussain Shah v. The State 1999 PCr.LJ 86.

4. Muhammad Mansha v. The State 2006 PCr.LJ 47 Lahore.

5. Mubarak Ali v. The State 2003 PCr.LJ 986 Lahore,

6. Abdur Rahim v. The State 1999 PCr.LJ 1305.

7. Habib ur Rehman alias Rehman alias Raja Bottal v. The State 1992 SCMR 1625.

8. Sher Hussain v. The State 2005 MLD 1756,

9. Sher Khan and 2 others v. The State and another 2003 PCr.LJ 1149 Peshawar and

10. Mehmood Sultan v. The State 1998 PCr.LJ 1769.

4. On the other hand, the argument of learned counsel for the complainant is that the delay has been fully explained as two members of the complainant party were in injured condition and the time was spent in taking them to the hospital for treatment. It is further argued that if the arguments of learned counsel for the petitioner are believed, it would amount to deeper appreciation of evidence which is always a task to be undertaken at the stage of trial and not bail stage. As far as lodging of F.I.R. on the basis of murasila is concerned, his reply is that it depends on the circumstances and if the circumstances do not allow registration of F.I.R. the case may be registered on the basis of murasila. Unless and until there is formal defect on the face of it, murasila cannot be disbelieved. Every case has its own circumstances and the facts are to be assessed accordingly.

5. I will first take the question of delay. The delay is about one hour. As is evident from the record, the complainant and his mother were injured and in such situation, the priority was to provide medical aid to them and not a lodge report. Moreover, the time spent is because of transportation of the deceased and injured to the hospital and it seems that the first available opportunity, the report was lodged in the shape of murasila. So, at present without evidence before the Court, the delay cannot be termed as fatal. As far as the recording of F.I.R. on the basis of murasila is concerned, it is not a novel task because most of the cases are registered on the basis of murasila keeping in view the facts and circumstances of each and every case. In this case, as discussed above, the first priority was to take the injured for medical treatment and not to lodge report. This was not a normal case. In cases where there is no urgency, like in the ease-in- hand, the report in the shape of murasila may be defective but in this case, had the complainant party gone for report to the police station, the condition of injured would have deteriorated. So, the wisdom was to report the case in the shape of murasila after arranging medical aid for injured.

6. In this connection, case titled Mst. Musarat Bibi and another v. The State 1992 PCr.LJ 158 is relied upon by the counsel for the petitioners. The observation of the Honourable Federal Shariat Court is that it is regretted to observe that in Punjab Province mostly the cases are being registered on murasila and story goes that complainant meets S.H.O. or A.S-I at Chowk or on the way and Police Officer records murasila and formal case is registered. According to the Honourable Court, the practice is against the fundamental principles of Justice and gives licence to police officer to manoeuver the F.I.R. in any manner. It can hardly be believed that in a number of cases the complainant is met with police and murasila is drafted. The above observation would reveal that the complainant party met with the S.H.O. or some other Police Officer in some place or on the way and there the police records murasila but the facts of the case-in-hand are quite different. The murasila in this case has not been drafted on the way or in the Chauk but in the hospital where the complainant was present for medical treatment. That was a natural course for him to offer his report and the police officer was bound to record it. There was no chance for reporting the matter in police station.

7. It is also one of the arguments that when there are two theories, the theory favourable to the accused is to be accepted. He relied upon Muhammad Arif and 2 others v. The State 2004 YLR 33 Karachi. I may point out here that in the above case the judgment of an Anti-Terrorism Court was impugned wherein the appellants/ accused were convicted and sentenced. It was not a case of bail and so, the deeper appreciation of evidence especially regarding two theories cannot be undertaken in the case in hand which relates to bail. Deeper appreciation is never allowed at the bail stage because it is bound to affect the prosecution case during trial.

8. Learned counsel for the petitioners also relied upon Manazar Hussain Shah v. The State 1999 PCr.LJ

86. The principle laid down in this case is that gravity of offence is no ground for refusal unless the accused is connected with such an offence. In the case in hand, the question is not of that gravity but the available evidence which goes against the accused and points out their connection with the offence of murder and attempted murder.

9. In case of Muhammad Mansha v. The State 2006 PCr.LJ 47 Lahore the principle laid down is that bail cannot be refused on mere charge of abscondence if the case is otherwise made out for bail. In this case, abscondence is hardly a ground for refusal because the accused are charged in the F.I.R. and prima facie they are connected with the offence on the basis of murasila which may be treated as dying declaration because after two days the complainant succumbed to injuries caused by the accused.

10. Learned counsel has relied upon Abdur Rahim v. The State 1999 PCr.LJ 1305 which relates to dying declaration and according to him, the dying declaration of the complainant made in the shape of murasila cannot be believed because the identity of the accused has become doubtful. It is the principle of criminal Justice that dying declaration is to be accepted keeping in view the surrounding circumstances. The dying declaration must be carefully scrutinized. In the reported case, the matter before the Court was appeal against conviction and the learned trial Court had believed dying declaration of a deceased. In this case the matter before the Court is bail and the Court is required to make tentative assessment of the case and not deeper appreciation of evidence. The F.I.R. was lodged by complainant in injured condition and prima facie there was no chance for the complainant for consultations for false implication of the accused. At the amount, there is nothing on record, pointed out by the accused, to make the murasila (dying declaration) as doubtful.

11. Another case-law relied upon is Mehmood Sultan v. The State 1998 PCr.LJ 1769. It is held in the said case by this Court that the dying declaration shall preferably be recorded in the presence of a Magistrate, but even in the absence of a Magistrate a dying declaration can be recorded if the person making the statement/declaration is examined by a Medical Officer. Again it is to be pointed out that the reported case is that of appeal against conviction recorded by the trial Court. The Honourable Court has correctly held that the dying declaration in that case was not recorded by the Magistrate or in die presence of a Medical Officer. In this case, the matter before the Court is of bail and no deeper appreciation is allowed particularly in respect of dying declaration. If we do not accept the dying declaration of the murasila in toto, we have to accept some parts thereof and those parts, prima facie can, at the moment, connect the accused with the murder of the complainant and attempt at the life of his mother.

12. In Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68, the apex Court has held that:-- "Even otherwise phenomenon of substitution is very rare in this part of the country. In view of above discussion, we are of the opinion that at a stage of admitting an accused to bail, the Court should not stamp the prosecution witnesses who have recorded their statements promptly to be false witnesses and accept the statements of defence witnesses whose statements are recorded after considerable period by the Investigating Officer from the happening of the offence to conclude that the respondent is innocent." It is further held that:-- "The ipse dixit opinion of the Investigating Officer cannot be accepted to exonerate the accused from the commission of offence.

13. In another case Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786, it has been held that "plea desired to be raised by the accused in their defence could be raised by them at the trial stage." So, in view of the above principle, if any plea is desired to be raised like that of alibi, may be taken at the trial stage and not at the stage of bail.

14. In short, the complainant has lodged F.I.R. promptly in which both the accused-petitioners are directly charged for the murder of complainant and injuring his mother. Apparently, the medical evidence and recovery of blood-stained earth from the relevant places connected the accused with the offence. The murasila in the shape of dying declaration because after two days of receiving injuries, the complainant succumbed to injuries and expired. Resultantly, this petition being without merit is dismissed. H.B.T./14/P Bail refused.