2000 PLP 1491 (MLD)

The applicant is involved in a case under sections 302, 148, 149, 114 P. P. C. arising out of Crime No .l l of 1999 of Police Station Veehar: On 20‑6‑1999 one Misri Shah lodged F.I.R. narrating therein that two days before lodging the F.I.R. he alongwith his nephew Peeral Shah, Gambal Shah and Ghulam Hyder Shah had gone to collect charity from their religious followers at village Bedi Lashari. They were sleeping in a Courtyard of otaq of Habibullah Lashari at night and the electric bulbs were shining. At about 3‑00 a.m. they found six persons armed with guns came there. Their faces were open and they identified four of them in the light of flash bulbs, to be Abid Shah, Fida Hussain Shah, Mahboob Shah and Nazeer Shah whereas two were unknown. It is stated that Abid Shah and Nazeer Shah challenged Paryal Shah and stated that he had not made their settlement, and therefore, they would not spare him and after saying so they both fired at Paryal Shah who fell down. The culprits thereafter made their escape good. The complainant thereafter found that Paryal Shah had succumbed to injuries. The complainant due to night time, remained there and in the morning proceeded to police station and lodged the F. I. R. The police took up the investigation and submitted challan. The present applicant was arrested on 4‑8‑1999 and his identification test was held through P.Ws. Gambal Shah and Ghulam Hayder Shah who is said to have picked up him in the test. It is contended by the learned counsel for applicant that co‑accused Fida Hussain Shah and Mahboob Ali Shah have been granted bail by the trial Court on 20‑10‑1999. The said bail order has been placed on record. He has stated that the case of present accused is more bright than those two accused as his name does not figure in the F.I.R. and the names of aforesaid two accused are nominated in the F.I.R. It is argued that the accused is entitled for bail on the principle of consistency as no active role is ascribed to him in identification parade and the alleged recovery of torch is of no consequence as it was not the case of complainant in F.I.R. that culprits or the deceased were identified in torch light. The learned trial Court has observed in its previous bail order dated 20‑10‑1999 that the F.I.R. is delayed by seven hours and distance is 8/9 kilometers which is not for away due to the facilities of conveyance nowa days, easily available. The trial Court has further held in the same order that no overt act was attributed to the aforesaid two accused. They were only present at the spot with weapons and the case was of two versions. The learned trial Court has totally deviated from aforesaid finding recorded in its previous order. In its subsequent order viz. 12‑11‑1999 he has observed that delay in lodging the F.I.R. has been plausibly explained by the complainant and generally there is a traffic problem in the odd hours of the night and the people may not be able to approach the police station immediately. The learned trial Court has further observed in the subsequent order that the applicant was arrested and picked up by the P.Ws. in identification test. He had facilitated co‑accused by flashing torch for the identification of deceased and the said torch is said to have been recovered from the accused. Mr. Altaf Hussain Surahio learned counsel for State in view of the aforesaid circumstances has no objection to the grant of bail. This fashion of recording bail orders by judicial officer is deprecated and in no way it can be approved. The learned trial Court has fully deviated from its previous findings. The name of present applicant is not nominated in F.I.R. He was put to identification test after his arrest and is said to have been picked out try witnesses. The trial Court has held that torch was recovered from him by which he facilitated the co‑accused. It is not the case of complainant. He stated in F.I.R. that electric bulbs were shining in the light of which they identified the culprits. Nowhere he says that any culprit was carrying torch. The introduction of torch make the case of present accused more doubtful. The accused was entitled for bail on the ground of principle of consistency which is not taken into consideration but on the contrary bail was refused to the present applicant. Accordingly the accused is granted bail in the sum of Rs.20,00,000. (two lacs) and P.R. Bond in the like amount to the satisfaction of trial Court. Let the copy of this order and the two bail orders passed by trial Court alongwith F.I.R. be sent to the Registrar of this Court for placing the same before Honourable Chief Justice for perusal. H.B.T./M‑68/K Bail granted.