2009 PLP 387 (YLR)

ZAFAR AHMED KHAN SHERWANI, J.

This is a bail application under section 497, Cr.P.C. moved on behalf of the applicant Jamsher Mazar, incarcerated in the F.I.R. bearing Crime No.138/2007 P.S. Kashmore under sections 459, 460, 324, 148, 149 and 337-H(ii), P.P.C. The brief facts leading to the application are that the complainant Haloo Khan reported on 22-8-2007 at about 8-30 p.m. that on the previous night he along with his family members mentioned therein were sleeping in the courtyard of his house where his cattle were also tethered. At about 1-30 a.m. they woke up on the barking of dogs and when they flashed their torches they found seven nominated armed bandits including the applicant equipped with Kalashnikovs, lathies and guns, along with three unidentified accomplices standing near the cattle. On their challenge, they came in front of them and one of them, namely, Shah Gul i.e. father of the applicant/accused fired from his Kalashnikov directly on his brother Mirza, and then Atif fired on him also with his Kalashnikov who fell down. The application/accused gave a lathi blow on him on his head. On this, his brother, namely Tufail Ahmed went near them to apprehend but Shah Gul fired at him causing injuries on his knee who also fell down and then all the culprits fled away by firing in the air. The complainant party removed the deceased Mirza and injured Tufail Ahmed who was still alive, to the Police Station and then to the Hospital. It was contended on behalf of the .applicant/accused that his case falls within the purview of further enquiry as envisaged under subsection (2) of section 497, Cr.P.C. as the main nominated accused, Shah Gul was let off by the police during the, investigation of the case, that the police recorded the statement of the injured P.W. Tufail after five days of the incident without any plausible explanation, that even the F.I.R. was registered after 17 hours after the incident without any explanation. He elaborated that on account of letting off the nominated accused the entire prosecution story has become doubtful bringing the case of the applicant, against whom the only allegation was that he caused lathi blow to the deceased, within the ambit of further enquiry. He also contended that since the police did not secure the torches which were said to have been used by the complainant party to identify the culprits, therefore, their identity becomes doubtful, He also averred that the police also failed to hold his identification parade on which ground too, his identity can not be ascertained at this stage. In support of his arguments he has relied upon the case of Khadim Hussain v. The State (1990 PCr.LJ 1296), Parial V. The State (2006 PCr.LJ 1212), Sultan Mahmood v. The State (KLR 1986 Lahore Lahore 13), Mst. Qudrat Bibi v. Muhammad Iqbal and other (2003 SCMR 68) and Saeed Muhammad Shah v. The State (1993 SCMR 550). In reply of the above arguments, the learned State Counsel who opposed the bail application contended that the medical evidence is in corroboration with the oral evidence with regard to seat of the injury received by the deceased at the hands of the applicant/accused by danda blow and the opinion of the medical officer that the injury could be sufficient to cause his death, therefore, he is not entitled for the concession of the bail. I have considered the above arguments in the light of the record and case law referred to above. The case of the prosecution as mentioned above, shows that there were in all seven identified as well as unidentified armed bandits who trespassed into the courtyard of the complainant apparently to commit theft of his cattle after the midnight on 22-8-2007. Out of them, four were identified in the torch light including the applicant/accused having lathi in his hand. The allegation against him is that he also gave a fatal blow to. the deceased Mirza on his head, however as rightly contended by the learned Advocate for the applicant/accused that there was no fracture of the skull bone. To ascertain his unmistaken identity his identification in the light of torch is doubtful as no torch was produced before the Investigation Officer during the investigation. In view of the uncertain identification his case requires further enquiry because the simple statements of the complainant and PW. Tufail are not sufficient on account of the delay of 17 hours in lodging the F.I.R. which reflects deliberations and consultation by the complainant party before his nomination. With regard to letting off one of the nominated accused against whom the allegation was that he had fired with his Kalashnikov at the deceased as well as the injured P.W. Tufail Ahmed, by the police, it may be observed that on that account the ocular account of the incident has been made doubtful. This accused was the father of the present applicant/accused which fact also indicates that an effort was made by the complainant to involve more than one person of the family of the applicant/accused 'in commission of the offence. This being the position, the applicant/accused is entitled for the concession of bail as envisaged in section 497(2), Cr.P.C. for there are no reasonable grounds for believing that he has committed a non-bailable offence but there are sufficient grounds for further enquiry into his guilt. Hence the application in hand is allowed granting bail to him but subject to furnishing solvent surety in the sum of Rs.100,000 (One Hundred thousand rupees) and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./J-24/K Bail granted.