2007 PLP 2055 (YLR)

IQBAL HAMEEDUR REHMAN, J.

The petitioner seeks post-arrest bail in case F.I.R. No.139 dated 13-5-2006 registered under sections 324, 459 and 411, P.P.C. at Police Station Sinawan Muzaffargarh.

2. Briefly stated the prosecution case as contained in the F.I.R. is that on 13-5-2006 at about 2-00 a.m. (night), the complainant along with his brother was present at home and he saw in the moonlight and the light of electric bulb that two unidentified persons were stealing two briefcases, one colour T.V. whereupon the complainant raised hue and cry. Ejaz Husain brother of the complainant, who was sleeping in the compound also attracted. The unidentified persons were busy in stealing the articles in the room of Ejaz Husain, brother of the complainant and on hearing hue and cry the said culprits also came out of the room. The complainant caught hold the unidentified culprit, standing at footstep at the house. The other was armed with pistol and made firing on the asking of his co-accused and he fired two shots which landed upon the calf of right leg of Ejaz Husain, brother of the complainant and the other landed under the knee of right leg, who fell down after receiving the fire., On the, hue and cry the P.Ws. attracted the spot and saw the occurrence and both the accused fled-away. The petitioner was not named in the F.I.R. but was implicated in the case subsequently f on the supplementary statement of the complainant.

3. It is contended on behalf of the petitioner that the complainant fully mentioned the description of the accused persons in the F.I.R.; that the complainant had fully identified the accused persons in the moonlight and the light of electric bulb and according to the complainant, the accused persons had not even muffled their faces; that the petitioner was also resident of the same locality; that the petitioner was not named in the F.I.R. by the complainant; that the complainant had implicated different persons of the locality through his supplementary statements firstly through the supplementary statement dated 16-5-2006 the complainant had implicated Abdul Aziz, Muhammad Farooq and Muhammad Tahir and thereafter on 9-6-20067. the complainant entered 'into a compromise with them and they were exonerated; that on 19-5-2006, Mahtab, Farooq and Abdul Aziz were implicated as they were real culprits, resultantly, Mehtab and Farooq were arrested by the police on 29-5-2006 and they admitted about the commission of occurrence and on 31-5-2006 they also admitted that they would get recovered the weapons of offence used in the occurrence but again the. complainant made a subsequent statement before the police on 4-6-2006 that the above-accused persons were innocent and they be discharged from the case and resultantly, on 19-6-2006, the accused persons were discharged by the police and according to the Investigating Officer, the above-said accused persons were discharged by the Illaqa Magistrate on the statement of the complainant; that on 19-7-2006, the complainant again got recorded another supplementary statement, in which he stated that three unidentified persons are the real culprits and made suspicion that Abdul Rasheed and Abdul Majeed are his real culprits; that on 21-7-2006 Abdul Majeed was arrested and on 31-7-2006 he was also got discharged as a result of compromise between the complainant and the accused person; that on 12-12-2006, the petitioner was involved by the complainant and he demanded from the petitioner to prove his innocence before two persons i.e. Muhammad Rafique and Abdul Aziz otherwise he would be challaned in the case; that the petitioner also demanded huge amount from the petitioner for exonerating him from the instant case; that the petitioner did not accede to the illegal demand of the complainant, resultantly, the complainant got the petitioner involved in the instant case through a fictitious evidence of extra-judicial confession which was made against the petitioner by the above-said two P.Ws. i.e. Muhammad Rafique and Abdul Aziz; that the "sole evidence against the petitioner is of extra-judicial confession, which is a weak type of evidence; that oaths in criminal cases are not permissible under Article 163(3) of Qanun-e-Shahadat Order; that according to the complaint of the complainant, golden rings weighing 1-1/4 tolas were missing 'from their house, whereas accordance to the recovery memo., golden rings weighing 1-1/2 tolas were said to be got recovered from the petitioner, therefore, the recovery is contradictory to the contents of the complaint made by the complainant to the police and the same is sufficient to falsify whole story of the F.I.R. and prove innocence of the petitioner and that no identification parade has been held. In support of his contentions, learned counsel for the petitioner has relied upon Bashir Ahmad alias Bashira v. The State (2004 YLR 1046), Muhammad Suleman v. Riasat Ali and another (2002 SCMR 1304),Muhammad Kazim v. The State (2005 PCr.LJ 531) and Atta Muhammad v. The State (2004 PCr.LJ 1431).

4. On the other hand, the bail has been opposed by learned counsel for the State.

5. Arguments heard, record perused.

6. In the instant case, the complainant through subsequent supplementary statements had time and again involved different sets of people to be his culprits and had later on entered into a compromise and got them discharged. Similarly, the present petitioner had also been impleaded by the complainant through the alleged evidence of extra judicial confession which was Made against the petitioner by two P.Ws., namely, Muhammad Rafiqe and Abdul Aziz. As the complainant has time and again implicated different sets of accused to be his culprits, the case of the petitioner becomes that of further inquiry. Moreover, the petitioner had been involved on the basis of an extra-judicial confession which is a weak type of evidence. The learned trial Court has yet to determine after recording evidence whether said confession was admissible or not and in this respect, reliance is placed upon Bashir Ahmad alias Bashira v. The State (2004 YLR 1046). Moreover, the complainant had recorded the F.I.R. against unknown persons. The petitioner was not nominated in the F.I.R. Subsequent to his implication in the instant case through the supplementary statement of the complainant made on 12-12-2006, the identification parade of the petitioner should have been held but no identification test was arranged by the I.O. and in this respect reliance is placed upon Muhammad Suleman v. Riasat Ali and another (2002 SCMR 1304), wherein it has been held that non-holding of identification parade after arrest of the accused person had brought his case within the purview of the section 497(2), Cr.P.C. Reliance is also placed upon Muhammad Kazim v. The State (2005 PCr.LJ 531) and Ma Muhammad v. The State (2004 PCr.LJ 1431).

7. In view of the above circumstances and relying upon the authorities referred above, the case of the petitioner becomes that of further inquiry which entitles the petitioner for the grant of bail. Therefore, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand) with one surety in the like amount to the satisfaction of the trial Court. H.B.T./M-310/L Bail granted.