2010 PLP 1342 (MLD)

SHAHID ANWAR BAJWA, J.

F.I.R. No.27 of 2009 was registered at Police Station Cantonment Panu Akil on 22-5-2009 at 1930 hours for an incident which is alleged to have been taken place at 0215 hours. It was stated in the complaint that there was some previous stealing of cattle which was returned to the complainant party after an F.I.R. was lodged. It was stated in the complaint that on the fateful day complainant and his father at about 2-15 a.m. woke up on some rattling and saw five persons, three of them identified and two of whom could be identified from their faces. The five persons challenged father of the deceased and told him that they would kill him whereupon they fired upon him. As a result the father expired. On hearing fire reports other villagers came. Upon that the accused persons made good their escape. The present applicant was identified in further statement of the complainant recorded on 23-5-2009; bail application was filed and has been dismissed by the Court below vide order, dated 1-7-2009. Mst. Rizwana Jabeen learned counsel for the applicant submitted that name of the applicant does not find place in the F.I.R. and although applicant belongs to the same village, the complainant could not identify him while recording the F.I.R.' and named him in his further statement recorded on 23-5-2009. She further submitted that one Noorullah was also similarly alleged in the F.I.R. and was similarly identified in further statement. She submitted that Noorullah has been granted bail by this court vide order,, dated 26-10-2009. She submitted that on the principle of consistency the applicant is entitled to bail. She further submitted that a K.K. is stated to have been recovered from the applicant but it was recovered after 11 days of arrest of the applicant and it has not been sent to Forensic Science Laboratory for matching with the empties stated to have been recovered. She relied upon Muhammad Khan v. The State 2001 PCr.LJ 1628 and unreported judgment of this court in Criminal Bail Application No.267 of 2008. Mr. Shyam Lal Ladhani learned APG submitted that 10 empties were recovered from the spot. Forensic Science Laboratory has submitted a -report that three of those empties have been found to match with the K.K. stated to have been recovered on pointation of the present applicant:- He relied upon Munawar v. State 1981 SCMR 1092 and contended that since the applicant was in the party which fired he was constructively liable and therefore is not entitled to the facility of bail. He further submitted that at the scene of occurrence foot-prints of five persons have been found and empties have been recovered. Mr. Manzoor Ahmed M. Junejo, on 31-12-2009 undertook to file Vakalatnama on behalf of the complainant. Today he files Vakalatnama. Same is taken on record. He argued that the present applicant although not named in the F.I.R. was identified in the further statement and recovery has been effected from him in presence of private mushirs. He further submitted that an innocent elderly person has lost his life and the accused is directly implicated. He relied upon Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and contended that even if a person is not nominated in the F.I.R. but has been nominated subsequently through supplementary statement it would not be a case where it can be said that same had been hoisted on account of malice either on the part of police or even on the part of the complainant. I have considered the submissions made by the learned counsel and have also gone through the record. In Muhammad Khan's case (supra) the facts were that it was alleged in the F.I.R. that on the day prior to lodging of the F.I.R. two guests of Bhaeel community came and younger brother of the complainant was taken along with them. The younger brother did not return. During the night the complainant stated that he heard fire shots. Early in the next morning when he reached near his land he saw a person tied by a cloth with a tree. When he reached near it he found dead body of his brother two had fire-arm injury on his person. Bail application was dismissed by the trial court. A Division Bench of this court observed that the name of the accused did not appear in the F.I.R. and there is no single witness which had implicated him in the commission of the offence. The accused was arrested almost three months after the murder in the further statement the complainant and witnesses stated that they had come to know that the accused might have committed the offence but no source of information had been disclosed. This case is clearly distinguishable from the present case; firstly because the complainant is said to be a witness of murder and secondly the complainant identified the applicant on the next day in his further statement. In case of Criminal Bail Application No. 267 of 2008 accused was arrested 12 days after the incident and no recovery was stated to have taken place from his possession. However; it was later-on stated that a K.K. was alleged to have been recovered from him and it was sent to the Baillistic Expert for its examination. The High Court observed that even if that report had been brought on record it would be of no use for prosecution because as per contents of the F.I.R. fire shot on deceased was by co-accused Liaquat Ali only. This case is therefore also clearly distinguishable. In the present case, three empties have been found to match with the K.K. stated to have been recovered from the present applicant. In the case of co-accused who has been granted bail by my learned brother vide his order, dated 31-10-2009 on page 5 of the order it is observed by his Lordship that neither applicant was named nor any role is against him "neither crime property was recovered from him though he was arrested during investigation". (The underlining and emphasis is mine). The case of the applicant is clearly distinguishable from case of the co-accused because it is alleged that K.K. was recovered from the applicant whereas no such recovery has been claimed from co-accused Noorullah and what is most significant is that three of the empties have been reported to have matched with the allegedly recovered K.K. Learned APG relied on Munawar's case and in my opinion his reliance was quite apt. In that case the incident was stated to have taken place on 30-1-1978. All the four accused were named in the F.I.R. and it was stated that the petitioner as well as two others were carrying pistols whereas fourth one was carrying danda. It seems that later-on even the fourth one was credited to carry a .12 bore pistol and on account this discrepancy he was allowed bail whereas the remaining three persons were refused concession of bail. It was submitted by the counsel that prosecution case was belied by the fact that injuries said to have been caused to the first informant by the petitioner had been found, on medical examination to be pallet injuries, thus showing that have not been caused by a pistol. The Supreme Court observed that as to the alleged participation of the petitioner in the assault it would suffice to say that there was prima facie material to show that he had taken part in the occurrence as one of the empties had matched with the pistol. The Supreme Court agreed with the counsel for the State that the pistol used by the petitioner was apparently of .12 bore and that's why it caused pallet injuries to the complainant. Thereafter the Supreme Court observed as under:-- "Now, in the present case, it is alleged that the petitioner and his companions had come fully armed with deadly weapons, and that it was in pursuance of their common intention that one of them fired at the deceased, whereas the shots fired by the present petitioner caused injuries to Sadiq complainant. In these facts it is not possible td hold that the petitioner did not share any common intention with the accused whose shot actually hit the deceased. In the circumstances the learned Judge in the High Court was right in thinking that the principle of vicarious liability was attracted to the petitioner." As to why the complainant was not able to identify the accused while lodging F.I.R., learned counsel for the applicant contended that the applicant belongs to the same village as that of the complainant and therefore the complainant should have identified him at the time of lodgment of F.I.R. and therefore his subsequent naming in the further statement was an improvisation. Learned counsel for the complainant stated that the complainant and the applicant are residents of different villages. In the bail application the applicant is shown to be a resident of Sultanpur and in the F.I.R. the complainant is shown as resident of Village Khaso. Therefore, prima facie the contention of the learned counsel for the applicant does not appear to be correct. For the above reasons, I do not think that applicant is entitled to concession of bail. This bail application is consequently dismissed. Needless to observe that none of the above observations shall in any way influence the trial court while deciding guilt or innocence of the person standing trial before it. Needless also to say that if after some further progress in the trial any bail application is made, the trial Court shall decide that application independently and on merits without any regard to any of the observations made above. N.H.Q./M-15/K Bail refuse