2009 P Cr (PLP)

MUHAMMAD ALAM KHAN, J.

Haji Muhammad Noor, accused/petitioner, charged in case F.I.R. No.53 dated 2-2-2007 registered under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Lakki Marwat, having failed to get the concession of bail from. the Court of learned Additional Sessions Judge-I, Lakki Marwat vide his order, dated 15-12-2007 on the fresh ground of being innocent has filed the application in hand for the same relief.

2. It was on 2-2-2007 that Ubaidullah Khan, A.S.-I. of Police Station Lakki Marwat along with police party was on petrol duty of the area when he received information that a dead body was lying in the hill of Darra Tang. He rushed to the spot, reached there at 1930 hours and found a dead body which was later on identified to be of Sher Zaman son of Muhammad Ghulam, resident of Gullapa, to had been done to death by fire-arms. After preparing injury sheet of the deceased and site plan, the dead body was sent for autopsy to the City Hospital Lakki at the hands of Constable Sarwar and Murasila was forwarded to the Police Station Lakki Marwat at the hands of Constable Asmatullah whereon the instant case was registered.

3. On the following day i.e. 3-2-2007, Anwar Kamal, complainant/ respondent No.2 herein, appeared before the police and recorded statement under section 161, Cr.P.C. to the effect that the deceased Sher Zaman was his driver and used to ply his motorcar as taxi at Lakki Stand who has been killed by some unknown culprits by taking away his motorcar, its original registration and a mobile phone of the deceased. Subsequently, on 6-2-2007 supplementary statements of the complainant and other witnesses were recorded wherein Iqbal son of Raees Khan, Liaqatullah son of Muhammad Khan, Fazl-ur-Rahman son of Ameer Nawaz and Mustansar Jawad son of Jawad-ul-Islam were charged for committing murder of the said deceased Sher Zaman who pointed the place of occurrence to the police and on the pointation of accused Mustansar Jawad, original registration copy along with key of the motorcar were allegedly recovered. Thereafter, on 2-3-2007 i.e. after lapse of one month, the complainant recorded his third supplementary, statement that he is in receipt of telephonic message on 1-3-2007 at 1130 hours to the effect that if he wants the stolen motorcar, then after "Gharoob Vela" should come to the F.R. area along with rupees three lacs as ransom. Accordingly, when the complainant reached to the nominated place, he saw the accused/petitioner along with co-accused who after receiving the ransom amount (Bhonga) handed over the stolen motorcar along with its key to the complainant. Thus, the complainant charged the accused/petitioner and his co-accused for the instant offence.

4. After his arrest, the accused/petitioner applied for bail but remained unsuccessful upto this Court vide order, dated 6-7-2007. Subsequently, on 30-11-2007, the complainant filed an affidavit coupled with his statement recorded by the lower Court on overleaf of the said affidavit to the effect that the accused/petitioner along with co-accused Fazl-ur-Rahman and Said Nawaz had muffled their faces due to which they could not be correctly identified but charged them on suspicion. Thus, all the said three accused satisfied the complainant on Holy Qur'an about their innocence. The accused/petitioner considering this last assertion of the complainant as a fresh ground applied for the grant of bail but his prayer was turned down by the learned Additional Sessions Judge-I, Lakki Marwat on 15-12-2007 and hence this petition.

5. Learned counsel for the petitioner submitted that the petitioner has been charged only on suspicion and the prosecution story is concocted one. He argued that the supplementary statements of the complainant and other witnesses dated 2-3-2007 are inadmissible being of a belated stage having been recorded after lapse of one month and thus, violative of the mandatory provisions of section 173(1)(b), Cr.P.C. and could not be cured under section 537, Cr.P.C. His submission was that the complainant after full satisfaction has exonerated the accused/ petitioner of the charge in hand and there being no corroborative independent evidence, no case is made out against him and that there are glaring contradictions in the supplementary statements and the prosecution version. The last limb of his arguments was that the petitioner is neither charged for the murder of the deceased nor for the snatching of the motorcar but only charged for receiving the ransom money which does not attract the provisions of section 17(4), Harraba of the Ordinance (ibid).

6. On the other hand, learned counsel for legal heirs of the deceased opposed the grant of bail to the accused/petitioner on variety of grounds. He argued that on merits bail prayer of the petitioner has been rejected upto this Court, that it was the accused/petitioner who had received the ransom in lieu of the stolen motorcar and the so-called affidavit of the complainant at a belated stage which is the only plea of the petitioner for his release on bail could not be taken as a ground for such purpose. Reliance in this respect was placed on the case-law reported as Naseer Ahmad v. The State PLD 1997 SC 347 and Muhammad Yaqoob v. The State 2006 SCMR 1265(2) wherein it has been categorically held that in such a situation, affidavits and such statements would have no value.

7. The learned Deputy Advocate-General representing the State also vehemently opposed the grant of bail to the petitioner almost on similar grounds agitated by the learned counsel for the legal heirs of the deceased Sher Zaman.

8. I have anxiously considered the arguments advanced at the bar and scanned the record threadbarely.

9. Perusal of the record indicates that the petitioner is directly nominated by the complainant Anwar Kamal and witness Jan Muhammad in their supplementary statements for committing the offence. It is also an admitted position that the snatched/stolen motorcar was found in possession of the accused/petitioner who has afterwards returned the same but on payment of ransom. The so-called compromise effected by the complainant Anwar Kamal with the accused/petitioner and other co-accused is of no help because the offence is not compoundable. Reliance in this respect is placed on the judgment reported as Muhammad Rawab v. The State 2004 SCMR 1170. Besides the fact that prayer for bail of the petitioner has once been rejected by this Court's order, dated 6-7-2007 on merits, from the available facts and circumstances of the case, prima facie case exists against the accused/petitioner which does not entitle him to the concession of bail. Consequently, I find no substance in this bail application which is hereby dismissed. H.B.T./216/P Bail refused.