2012 PLP 794 (MLD)

MUHAMMAD ALI MAZHAR, J.

The applicant has applied post-arrest bail in Crime No. 96 of 2011, Police Station Pano Akil, lodged under sections 302, 311, 34 P.P.C.

2. Succinctly, the facts of the prosecution case are that on 21-4-2011, complainant A.S.-I. Sadaruddin, Bhutto lodged the F.I.R. that he received spy information that accused Ali Akbar and Mubeen had levelled allegation of 'KARAP' against their sister/mother Mst. Arbeli with one Muhammad Ameen Jatoi and had committed the murder of Mst. Arbeli with pistols at prayer time. After receiving such information, complainant proceeded towards the pointed place along with his staff. When they reached at the house of Ali Bakhsh, they found dead body inside the room who received fire arm injury on her left side of ribs, elbow of right arm and also found three empties of cartridges. Due to non-availability of private Mashirs, P.C. Naseer Ahmed and P.C. Ubedullah were appointed Mashirs and prepared the Danishnama of deceased Mst. Arbeli and also prepared such Mashirnama.

3. The learned counsel for the applicant argued that the police have falsely implicated the applicant without conducting any proper investigation and no opportunity was provided to the relatives of the victim to lodge their own F.I.R. He further argued that place of incident was a thickly populated area but police did not associate any single independent witness from the locality. It was further averred that there was no eye-witness of the alleged incident which may suffice to prove the guilt of applicant. He further argued that according to prosecution, three empties were recovered from the place of incident while Ballistic report simply suggests that only one bullet/cartridge was fired from the recovered pistol upon deceased Mst. Arbeli, but police has mentioned in the F.I.R. that three empties were recovered. In the same offence, brother of deceased Ali Bux has filed direct complaint against two other persons namely Altaf and Abdul Wahab and according to contents of direct compliant, said accused persons Altaf and Abdul Wahab admitted their guilt in presence of witnesses that they committed the murder of deceased Arbeli. No private witness was taken as Mashir of recovery which is serious violation of section 103, Cr.P.C. The learned counsel referred to a copy of direct complaint filed by "Ali Bux v. Altaf and Abdul Wahab" under sections 302/34, P.P.C., which is available at page

49. The learned counsel further submitted that bail application was dismissed by the trial court vide order dated 29-8-2011 on the sole ground that offence was committed on 21-4-2011 and the private complaint was instituted on 26-6-2011 and perhaps it was motivated to make out a case of two versions for extending benefit of doubt to the applicant. In support of his contentions, he relied upon 1996 SCMR 1845 (Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others), in which, it was held that in case of counter version arising from the same incident, one given by complainant in F.I.R. and the other given by the opposite party, it is almost settled that such cases are covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. In such cases normally bail is granted on the ground of further inquiry for the reason that question as to which version is correct is to be decided by the trial court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. He further referred to PLD 1997 SC 408 (State through Advocate General, Sindh v. Bashir and others). In this case, honourable Supreme Court discussed the requirements of section 103, Cr.P.C. and observed that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In the same judgment, honorable Supreme Court also referred to its earlier judgment reported in PLD 1996 SC 574 in which principle with regard to search have been dilated upon in detail keeping in view section 103, Cr.P.C.

4. The learned A.P.-G. opposed the bail application on the ground that the applicant has been rightly implicated in the F.I.R. with specific role. Ballistic report also shows that deceased Mst. Arbeli received fire arm injuries. He further argued that though direct complaint has been filed by brother of the deceased but it is not sufficient to grant bail to the applicant. Private complaint has been filed with the sole intention to make out a case of two different versions only to facilitate the applicant for the grant of bail.

5. I have heard the arguments. According to prosecution case, dead body of deceased was found inside the room where three empties were found near dead body and so far as injuries to deceased are concerned, it is stated in the F.I.R. that deceased received fire arm injuries on her left side of rib and elbow of right arm. The prosecution secured empties and due to non availability of private Mashirs, two police constables were appointed as Mashirs and prepared Danishnama and Mushirnama. The Ballistic Examination, Report is available at page 47, in which it is stated that microscope examination revealed that 12 bore crime empty marked as C1 was fired from 12 bore C.M. shot pistol while two .12 bore crime empties marked as C2 and C3 were not fired from the abovementioned .12 bore CM shot pistol. This creates first doubt in the prosecution case as out of three recovered empties only one empty stated to have been fired from the shot pistol sent for opinion of Forensic Division Larkana. I have also examined the copy of direct complaint attached with the bail application at page 49 which shows that complainant Ali Bux, brother of deceased stated in paragraph-2 that his sister was murdered two months back. On 10-6-2011, when the complainant of direct complaint along with Abdul Ghani and Khalid Hussain was present in his house, accused Altaf and Abdul Wahab, both came and informed him that they murdered Mst. Arbeli. It is further stated in paragraph No.7 of the complaint that after knowing this information complainant along with witnesses approached the police station and narrated facts to S.H.O. with a request to record his statement and lodge separate F.I.R., but they were refused on the ground that police has already registered F.I.R. No.96 of 2011 on behalf of State, therefore, second F.I.R. cannot be lodged.

6. Though in the F.I.R., serious allegations have been levelled against the present applicant, who is also brother of deceased Arbeli, but it is also a fact that in the private complaint, another brother of the deceased has implicated two other persons and it is also a fact that F.I.R. has not been lodged by brother of the deceased, but it was lodged by A.S.-I. Sadaruddin on behalf of State. So far as the delay in instituting the private complaint is concerned, the complainant himself stated in direct complaint that he was regularly approaching the police station along with witnesses for recording his statement and lodging separate F.I.R. but his request was not acceded to. The direct complaint has not been filed by the opposite party, therefore, it can not be considered a case of counter version, however it creates doubt to the prosecution case for the reason that accused nominated in the F.I.R. and the direct complaint are different and it will only be proved on conclusion of trial who is the actual culprit. The learned Session Judge vide his order dated 10-8-2001, has already taken cognizance and bailable warrants of the accused have been issued in the direct complaint. It is also a fact that whole case is based on spy information and there was no eye-witness of the incident, therefore, at this stage possibility of false implication of the applicant cannot be ruled out especially in the circumstances when another brother of the deceased lodged private complaint and implicated other persons who have allegedly murdered deceased Arbeli. It is also a fact that no private Mashir was associated while preparing the Mashirnama at the place of incident or even at the time of recovery from the applicant and nothing has been mentioned or pointed out as to why private Mashirs from locality could not be arranged which is also violation of section 103, Cr.P.C. as discussed in the judgment of honorable Supreme Court reported in PLD 1997 SC

408. At this stage, this court has to only see whether applicant is connected with the crime or not and for that purpose, only tentative assessment of evidence was to be made and deeper appreciation of evidence and circumstances appearing in the case are neither desirable nor permissible at bail stage.

7. For what has been discussed above, I feel no hesitation in my mind to hold that the case of applicant falls within the phrase of further inquiry. Consequently, this bail application is allowed. The applicant is granted bail subject to his furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court. The observations made above are tentative in nature and shall not prejudice the case of prosecution. M.W.A./A-17/K Bail granted.