2008 PLP 1556 (SCMR)

ABDUL HAMEED DOGAR, CJ.

This petition is directed against order dated 5-9-2007 passed by learned Single Judge of Lahore High Court, Lahore whereby Criminal Miscellaneous No.8383/B of 2006 filed by petitioner was dismissed and he was declined concession of bail.

2. Briefly, stated facts of the case are that on 4-2-2006 complainant Muhammad Mushtaq lodged F.I.R. No.52/06 at Police Station Sadar, Kamoke stating therein that on the fateful day at about 1-15 p.m. he along with Nazir Ahmed and Mehar Din, P.Ws. were present at their agricultural land situated in Tibba Muhammad Nagar picking peas while deceased Ghulam Mustafa was sitting near them reading newspaper when suddenly four unknown persons armed with deadly weapons emerged there on motorcycles. One of them remained on the motorcycle, while three persons came down from motorcycle and made straight fires at deceased which hit on different parts of his body. As a result of which he succumbed to the injuries at the spot. The complainant, later on, through supplementary statement recorded under section 161, Cr.P.C. implicated petitioner and co-accused Ghulam Mustafa as culprits.

3. We have heard Sardar Muhammad Latif Khan Khosa, learned counsel for the petitioner and Ch. Munir Sadiq, learned D.P.-G. Punjab at length and have gone through the record and proceedings of the case in minute particulars.

4. It is contended by learned counsel for the petitioner that petitioner is innocent and has been falsely implicated in this case through a supplementary statement as he was not nominated in the F.I.R. According to him, he was declared innocent by three successive investigations. He further contended that no recovery of any sort has been effected from him. He submitted that statements of Nazir Ahmed and Mehar Din, P.Ws. were recorded after a delay of 74 days which makes the case of petitioner doubtful and of further inquiry. He further contended that co-accused Ghulam Mustafa has also been allowed bail by this Court.

5. On the other hand learned D.P.-G. Punjab controverted above contentions and supported impugned order. He contended that in the present circumstances no case for bail is made out.

6. It is an admitted fact that the complainant did not mention the name of the petitioner and co-accused in the F.I.R. but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the first information report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under section. 497, Cr.P.C. Moreover, since name of petitioner and co-accused were not mentioned in the F.I.R. and was mentioned in the supplementary statement by complainant which fact also brings the case within the ambit of further inquiry. It was held by this Court in the case of Falak Sher alias Sheru v. The State 1995 SCMR 1350 that F.I.R. is the document which is entered into book maintained at the police station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under section 156, Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of it. Similarly it was held by this Court in the case of Khalid Javed and another v. The State 2003 SCMR 1419 that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. nor read as part of the same and the value of the supplementary statement, therefore, will be determined keeping in view the principles enunciated by the superior Courts in this behalf.

7. Moreover, the statements of P.Ws. were recorded after a delay of 74 days. The delay in recording their statements has not been explained and this would be an important factor which is likely to give rise to an inference that second version was introduced by the prosecution after deliberations and if it is so it will adversely affect the prosecution case. It was held by this Court in the case of Muhammad Rahim and others v. Bakht Muhammad and others 2006 SCMR 1217 that statement of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and their statements were not trustworthy as their statements created doubt in their veracity as the law laid down by this Court in the case of Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550.

8. In view of above, we are of considered view that the case of petitioner requires further inquiry. Moreover, since co-accused Ghulam Mustafa has been granted bail by this Court as such on the principle of rule of consistency petitioner is also entitled to concession of bail. Accordingly, petition is converted into appeal and is allowed. Appellant Noor Muhammad was admitted to ad interim bail by this Court on 11-10-2007, which is confirmed, however, the amount of surety is enhanced from Rs.10,000 (Rupees ten thousand) to Rs.1.00,000 (Rupees one lac) with P.R. bond to the satisfaction of trial Court.

9. The above reasoning being tentative in nature shall have no bearing on the merit of the case. N.H.Q./N-6/SC Bail allowed.