1989 PLP 4199 (MLD)

In the State case (FIR No.1125/88) briefly the prosecution allegation disclosed is that Mohammad Farooq the brother-in-law of Alamgir alleged that on 10-12-1988 Alamgir and his companions had quarrelled with the present applicant who is councillor of the area and on the day of occurrence Alamgir was having tea in the hotel of Yaqoob where Nazeer Ahmed, Abdullah, Imdadullah, Zamir Hussain, Noor Mohammad Malik and one unfamiliar of face alongwith 10-15 others came armed with Revolver. `DAO' `SARIAS' `DANDAS' and knives and caused injuries to Alamgir. It was further alleged that Nazeer Ahmed and Abdullah fired at Alamgir and Zamir Hussain caused injuries with 'DAO' to Alamgir who sustained injuries and fell down whereupon so many persons collected out of whom Ameer Hussain tried to rescue Alamgir but be was also caused injuries on the arms and legs with weapons which they were carrying. Alamgir and Ameer Hussain sustained serious injuries and police had referred them to the hospital and after usual investigation, the case was challaned in the Court wherein applicant was shown as suspect and he moved an application for pre-arrest bail before the High Court and he was granted protective bail on 23-2-1989 with a direction to move the trial Court within one week. After about one month the sister of deceased Alamgir by named Mst. Sherdil Bano lodged a private complaint under Section 302/45 PPC against the present applicant and five others. In the private complaint after recording the statement of witnesses and the complainant the learned Second Addl. Sessions Judge on 7 2-1989 passed order to the following effect:- "Heard prima facie case under Section 302/34 PPC made out against the accused. Complaint is registered, summons for 14-2-1989 as Court." The applicant who was on protective bail granted by this Court on 1-3-1989 moved an application and offered surety and he was directed to appear on 2-3-1989 and again on 12-3-1989 whereas the record shows the applicant repeated the prayer to accept the surety offered by him in the direct complaint and the matter was postponed on 13-3-1989 on which date when the applicant surrendered before the Court the Second Addl. Sessions judge remanded him to custody with the following order:-- "Accused Mohammad Ali alias Jinnah has surrendered before the Court, as such he is remanded to judicial custody, adjourned to 25-3-1989 for further proceedings." The learned Advocate Mr. Gul Zaman Khan has appeared for the applicant in both the applications and while arguing the Criminal Bail Application No. 246 of 1989 it was contended by the learned counsel that in the FIR No. 1125 of 1988, the applicant is neither named nor assigned any specific part much less he is alleged to have caused any injury to the deceased or P.W. excepting the reference that the applicant had quarrelled with the deceased prior to the date of incident. It is further argued that the applicant is not shown in the FIR to be present at the place of occurrence nor implicated during the investigation by the prosecution witnesses in their statements before the police. The applicant moved an application for bail in the State case (FIR No. 1125/89) which was rejected by the learned Second Addl. Sessions Judge vide his order dated 27-4-1989. While adverting to the private complaint in which Criminal Bail Application No. 354 of 1989 has been moved it has been argued by the learned counsel for the applicant that the complaint is filed after a delay of nearly one month of the alleged occurrence and the private complaint is lodged by the sister of the deceased who is not the eye-witness of the occurrence and the allegations made in the pricate complaint are based on mere surmises and assumptions due to the enmity which is an outcome of previous incident as the applicant had lodged FIR against Alamgir deceased and others. It has been further argued that while bringing the private complaint on record, the summons were ordered to be issued on 17-2-1989 and three co-accused named in the private complaint have been granted bail by the learned trial Court. It has been further submitted by the learned counsel for the applicant that in the State case lodged by complainant Farooq who apart from bang relative of the deceased was an eyewitness the six persons were named and specific allegations were made there alongwith 10-15 unknown persons whereas in the private complaint only six persons including the applicant have been shown to be the accused. I have heard both the learned counsel for the applicant and the Addl. Advocate-General Mr. A.G. Mangi who has appeared on behalf of the State. Both the learned counsel have taken me through the evidence collected by the police in the State case and during the P.E. conducted in the Court of Second Additional Sessions Judge. I find sufficient force in the arguments of the learned counsel for the applicant that the applicant's name is introduced after the delay of one month in the private complaint due to previous enmity and that in the State Case (FIR No. 1125/88) the applicant has not been assigned any specific role much less specifically named in the report which was lodged by an eye-witness Farooq and Mst. Sherdil Bano who filed private complaint has in her complaint at para 9 of the complaint admitted that Mohammad Farooq was witness to the incident. She has also admitted in her complaint that it was Mohammed Farooq who has lodged the report at the Police Station. The learned counsel for the applicant vehemently urged that in the facts and circumstances of the case, the applicant's case calls for further enquiry. He has argued that in the initial stage summons were directed to be issued on bringing of private complaint by the trial Court as such it is submitted by the counsel for the applicant that the applicant is entitled to the concession of bail in the private complaint which is lodged after the delay of one month. I have given my anxions thought to the contention raised by the learned counsel for the applicant and the submissions made by him which are not controverted by Mr. A.G. Mangi the learned counsel appearing for the State. As the matter of facts it is argued by Mr. Mangi that from the evidence available with him it is not denied that the applicant is the councillor of the area but his name does not figure in the FIR which was lodged first in point of time by an eye witness and after consulting the police file frankly conceded to the extension benefit of concession of bail to the applicant. On the tentative assessment of the evidence available with the prosecution in both the cases (State case and the private complaint) I feel convinced that in the case lodged by Mohammad Farooq at the Police Station, Korangi on the same day of the occurrence the applicant was not assigned any specific role nor it has been alleged that he was present at the time of alleged incident. It is evident from the record that the complainant Mst. Sherdil Bano who is the sister of the deceased Alamgir has not denied the fact that the State case was lodged by Mohammad Farooq who was present at the place of occurrence. From the tentative assessment and perusal of record I am of the considered view that the applicant has made out a' case calling for further enquiry and his case from the material available on record is covered by sub section (2) to Section 497 Cr. P.C. and I feel pursuaded that in the facts and circumstances of the case, the applicant has made out a case for bail. Consequently, I extend the concession of bail to the applicant in view of the above factual position and while granting bail to the applicant in both the applications (Nos.246/89 and 354/89) 1 direct that the applicant may be released on bail in the sum of Rs. 50,000 (Rupees fifty thousand only) with one surety and P.R. Bond in the like amount to the satisfaction of trial Court in both the cases separately. The two bail applications Nos. 246/89 and 354/89 are individually accordingly granted as above. The two applications were allowed and the bail was granted in both the applications by short order passed by me on 4-5-1989 and above are reasons for the same. M.Y.H./M-832/K Bail granted.