2013 PLP 1587 (YLR)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

Criminal Miscel-laneous No.13981-B of 2012, Criminal Miscellaneous 14662-B of 2012 and Criminal Miscellaneous No.15028-B of 2012 are being disposed of by this single order as these petitions have arisen from single F.I.R.

2. Yasir Naveed petitioner seeks anticipatory bail whereas Umar Farooq and Mst. Aisha alias Ashi pray for their post arrest bail in case F.I.R. No.351 dated 23-5-2012 registered under sections 364, 302, 148/149, P.P.C. with Police Station Sillanwali, District Sargodha. It would be advantageous to mention at this stage that Yasir Fareed petitioner was admitted to post-arrest bail by learned Addl. Sessions Judge, Sargodha vide order dated 8-9-2012 but subsequently the bail granting order was withdrawn by exercising the jurisdiction under section 497(5), Cr.P.C. by learned Addl. Sessions Judge, Sargodha vide order dated 24-9-2012. In this situation, Yasir Farid has prayed for his anticipatory bail.

3. As per allegations contained in the F.I.R. one Mustafa Dogar on 22-5-2012 at about 8-00 a.m. visited the complainant Rana Muhammad Bashir with the complaint that his son Rana Irshad makes obnoxious calls to Mst. Mary and asked the complainant to restrain his son from doing the wrong to his daughter. The complainant in presence of Mustafa Doga etc. admonished his son and the accused party went back satisfied. He further reported that on 22-5-2012 at 'Maghrib vela' Mst. Ashi, Mustafa Dogar, Mirza Shayan along with three unknown persons while riding on a car armed with weapons again came at his house and called Rana Irshad out of his house. They kidnapped Irshad and subsequently the accused persons killed him by firing upon his abdomen, chest and mouth. The unknown persons at that time remained raising lalkara not to come near otherwise, he would also be done to death. Further reported that the assailants took away his son in injured condition at some unknown place. Khawar-Hussain, Rana Muhammad Afzaal and Rana Muhammad Anwar had seen the assailants firing and injuring Irshad deceased, whose dead body was found lying within the area of Chak No.128 North. The motive for the occurrence narrated in the F.I.R. is that Mst. Ashi had illicit liaison with the Shayan, who had suspicion that the deceased Irshad used to tease Mst. Mary the sister of Ashi due to which grudge they killed Rana Irshad. Subsequently on 29-5-2012, the complainant of the case introduced Yasir Fareed and Umar Farooq as an accused in the case with the role that they had caused injuries at the belly of the deceased and murdered him. This nomination was made by the complainant in respect of petitioners Yasir and Umar Farooq on the basis that he himself along with his eye-witnesses attempted to trace the assailants and two accused several times confronted with them at different places, who were duly identified by him and his P.Ws. He further stated in his supplementary statement that he has completely verified that Umar Farooq and Yasir Fareed were the persons who while armed with pistols had fired at the deceased.

4. Arguments of both the parties have been heard and record perused.

5. Initially, the F.I.R. registered at the police station does not provide any description of unknown persons, nor any role of firing except lalkara has been attributed to them. The complainant subsequently changed his version by making a statement before the police that those unknown persons were identified by him and his P.Ws. and that he verified the fact that they were the culprits who murdered his son with their pistols. This statement introduced subsequently by the complainant does not disclose the place where the complainant and his P.Ws. confronted with the petitioners and how they were able to identify them. Even this part of the statement does not explain the participation of the petitioners in the incident particularly, identification of the petitioners, when it was not mentioned that the petitioners were known to the complainant. Moreso, F.I.R. also lacks antecedents and description of the unknown persons. This statement has been treated by the superior courts as merely a statement made under section 161 Cr.P.C., which has no value in the eyes of law. It is further provided in the precedent cases that this part of the statement of the complainant cannot be equated with his first version made in the crime report and further that there is every likelihood that nominations of the persons in the supplementary statement is with due deliberation and consultation for the reason, the complainant has ample time for doing so. In the instant case, this statement was made by the complainant after six days of the occurrence. Thus it can validly be observed that nomination of the present petitioners could be result of due deliberation and consultation. Reliance in this respect is placed upon (2003 SCMR 1419) and (2008 SCMR 1556).

6. So far as the implication of the petitioners in the case is concerned, it needs further probe as presently there are two versions on the record, one given in the F.I.R. and the other made in the supplementary statement. In F.I.R. only role of lalkara has been attributed to the petitioners whereas in the supplementary statement a specific role of causing fatal injuries to the deceased has been placed on the record. Which version of the complainant is correct one, would be determined by the trial Court at trial stage. At present the case in hand clearly falls within the ambit of section 497(2), Cr.P.C. entitling the petitioners for bail. It would not be out of place to mention here that Mst. Ashi has not been ascribed with any role and her mere presence at the spot has been mentioned in both of the statements of the complainant thus she also cannot be detained in the jail till the proof of her participation in the occurrence.

7. For the foregoing reasons all the three petitions are allowed. Interim pre-arrest bail granted to Yasir Naveed is confirmed on furnishing of fresh bail bonds in the sum of Rs.one lac with one surety in the like amount to the satisfaction of learned trial Court, while petitioner Umar Farooq and Mst. Ashi are ordered to be released on bail on furnishing of bail bonds in the sum of Rs.one lac each with one surety each in the like amount to the satisfaction of learned trial Court. MWA/Y-2/L Bail granted.