ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 203 of 2018.
|
Date of hearing |
Order with signature of Judge |
12.06.2018.
Mr. Khalid Saeed Soomro, Advocate for applicants.
Mr. Shabir Ahmed Malik, Advocate for complainant.
Mr. Khadim Hussain Khooharo, Addl. P.G.
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Khadim Hussain Tunio, J- Through this bail application, applicants Manzoor and Bakhat alias Bakhoo seek their admission to post-arrest bail in Crime No.12/2016 of P.S Boreri (District Dadu), registered for offences punishable under Sections 302, 324, 337-H (2), 504 & 34 P.P.C. The bail application moved by the applicants before the learned trial Court was declined vide Order dated 19.02.2018, passed in Crl. Bail Appln. No. 444/2016.
2. The crux of prosecution case is that, on 07.07.2016 complainant Maqsood Chandio lodged report with P.S Boreri, to the effect that on the fateful night he alongwith his brothers, namely, Abdul Rehman, Ali Murad, their cousin Bakhshal and other inmates of the house were sleeping in their house and at about 01.00 a.m. they woke up due to barking of dogs and noticed four persons in their house, out of them they identified two persons on the torchlight, to be Moutbar Khan having repeater in his hand and Raju armed with gun, while two persons were not identified and they were having kalashnikovs. Out of them accused Moutbar and Raju fired upon Ali Murad, the brother of complainant which hit him and he died on the spot. The unidentified accused made direct fired upon complainant party but they avoided the same and ultimately the accused persons went out of the house. The motive as set-out in the F.I.R is that brother of complainant, i.e. PW Abdul Rehman is employed in police department and is posted as WPC at P.S B-Section Mehar and accused Moutbar Chandio and others being involved in criminal activities were annoyed with him that as to why he was not informing them about any raid conducted for their arrest by the law enforcing agencies.
3. Learned counsel for applicant mainly contended that, F.I.R is delayed for 05-days; that names of applicants do not appear in the F.I.R, however for the first time their names were introduced in the case in statements of prosecution witnesses under Section 161 Cr.P.C, which too were recorded belatedly by five days and no source of identifying the applicants is disclosed in such statements. Learned counsel further submits that no active role of making fire upon deceased has been assigned to the applicants even in statements of prosecution witnesses. He further contended that, the applicants are behind bars since last 21-months. In support of his contentions, learned counsel placed his reliance upon 2015 GBLR 272, 2002 SCMR 1304, 2010 SCMR 385, 2011 SCMR 161, 2011 YLR 400 and 2012 MLD 1986.
4. Learned D.P.G could not controvert the above submissions advanced by learned counsel for the applicants and conceded for grant of bail in view of dictum laid down by Hon’ble Supreme Court of Pakistan in case of Muhammad Rafique and others v. The State and others (2010 SCMR 385). While, learned advocate for complainant vehemently opposed the bail application on the ground that the delay in lodging F.I.R has been fully explained in the body of F.I.R; that applicants have been nominated in 161 Cr.P.C statements of the prosecution witnesses and that applicants moved joint application before the trial Court to the effect that they are not ready and interested to proceed with trial; that there is criminal record in credit of the applicants and that in all fourteen cases are pending trial against applicant Bakhat alias Bakhoo.
5. Heard learned counsel for the applicants, learned Advocate for complainant and learned D.P.G. as well as perused the material with their able assistance.
6. Record reflects that names of applicants are not appearing in the F.I.R; no marks of identification OR descriptions of unknown accused persons have been mentioned in the F.I.R. However, for first time names of applicants were introduced in the case on the basis of statements of prosecution witnesses recorded in terms of Section 161 Cr.P.C, which too are recorded belatedly. Even otherwise, no active role of making fire upon deceased has been assigned to the applicants in statements of witnesses or in the F.I.R. The only role assigned to them is that of making ineffective firing. In such circumstances, question of sharing common intention and vicarious liability of the applicants with principal accused would be determined at trial after recording evidence. Furthermore, the applicants have been in jail since last 21 months.
7. In case of Muhammad Rafique (supra), the Hon’ble Supreme Court of Pakistan has discussed the value and veracity of “further statement” and has held/ observed as under:
“As regards supplementary statement, P.W. 17 took names of 10 more accused persons from the names he took in the F.I.R, the same can be treated as statement under Section 161, Cr.P.C that can only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and deliberation to falsely involve the accused. This point was examined by this Court in the case of “Falak Sher v. State 1995 SCMR 1350”, wherein it has been observed that, “any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eyewitnesses as well as for false implication”. The said rule was reiterated in subsequent decision of this Court in the case of Khalid Javed v. State 2003 SCMR 1419 and further observed that such witness would be unreliable.”
8. Similar point was examined by this Court in the case of “SOHNO BULLO versus THE STATE 2012 P.Cr.L.J 986 (Sindh), and while granting bail to accused, it was observed that “name of accused had not been mentioned in the F.I.R and he was implicated after eleven days of the occurrence by witnesses in their statements recorded under Section 161, Cr.P.C, therefore, reasonable grounds existed that the name of accused had been implicated after due deliberation and consultation and possibility of his false involvement could not be ruled out; contents of F.I.R revealed that all three prosecution witnesses were present at the place of occurrence and they had seen the unidentified accused persons but they did not nominate accused in the F.I.R and took eleven days to acknowledge the accused and implicated him in their statements, which created doubt in the prosecution case”.
9. From tentative assessment of all the above factors and the material available on record the case of applicant appears to be one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the instant bail application was allowed vide short Order dated 12.06.2018 whereby applicants were admitted to bail, and these are the reasons for the same. The short order is reproduced as under:
“Heard learned counsel appearing for the parties. For the reasons to be recorded later-on, the instant bail application is allowed. Consequently, applicants Manzoor and Bakhat alias Bakhoo are admitted to post-arrest bail in Crime No.12/2016 of P.S Boriri (District Dadu), upon their furnishing solvent surety in the sum of Rs.500,000/- (Five hundred thousand rupees) each and P.R bonds in the like amount to the satisfaction of trial Court. However, the trial Court is directed to speed-up the trial of the case and conclude the same within a period of six (06) months with compliance report to this Court through Additional Registrar and in case, the applicants create any hindrance in conclusion of trial, the trial Court shall be at liberty to cancel their bail without issuing any notice”.
JUDGE
Ansari/*