ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No.S- 442 of 2023
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Date |
Order with signature of Judge |
Applicant Raja Imran Khan : Through Messrs Habibullah G. Ghouri
Jalbani and Abdul Rehman A. Bhutto Advocates.
The State : Through Mr.Ali Anwar Kandhro,
Additional Prosecutor General, Sindh.
Complainant : Through Mr. Ghulam Murtaza Tunio
Muhammad Ismail Jalbani Advocate.
Date of hearing: 26.10.2023
Date of order: 26.10.2023
O R D E R
Muhammad Saleem Jessar, J.- Applicant Raja Imran Khan Jalbani has approached this Court seeking his release on bail in Crime No.137 of 2022, registered at Police Station Ratodero, for offence under Sections 302, 324, 148, 149, 337-H(2), 337-A(i) and 337-F(i), PPC.
2. The case has been challaned by the police which is now pending before the Court of Additional Sessions Judge, Ratodero vide Sessions Case No.190 of 2023 re: State v. Ghulam Rasool Jalbani and others. Co-accused Qurban was arrested on 24.02.2023 and the present applicant Raja Imran Khan Jalbani is said to have been arrested on 13.7.2023. The present applicant alongwith co-accused Muhammad Hayat filed post arrest bail application before the trial Court, which has been declined through order dated 05.8.2023, hence this application has been maintained.
3. The prosecution case, in brief, is that on10.11.2022, at about 9.00 p.m., at the Main Bus Stand of Ratodero Town, the accused persons, namely, 1) Ishaque armed with KK, 2) Riaz armed with pistol, 3) Ghulam Rasool having iron rod, 4) Meer Abdul Qadir with cudgel, 5) Abdul Rasool, 6) Mumtaz, both having cudgels, 7)Muhammad Hayat, 8) Mian Khan, both armed with KKs, 9)Aziz with iron rod, all by caste Jalbani, accompanied by three unidentified accused armed with KKs, committed murders of Zaheer Khan son of complainant Muhammad Ismail Jalbani and his relative Siraj Ahmed, so also seriously wounded Abdul Latif by making fires as well as inflicting cudgel and iron rod blows to them. After making aerial firing, the accused persons left the scene. After burial and funeral ceremonies, the complainant lodged FIR of the incident on 12.11.2022.
4. Learned counsel for the applicant submit that in all 12 accused persons (09 nominated and 03 unidentified) have been implicated by the complainant in the FIR, wherein the name of applicant does not find mention, though the FIR was lodged after 02 days of the alleged incident i.e. on 12.11.2022. They next submit that the name of applicant was introduced by the complainant through his further/ supplementary statement recorded on 28.11.2022 i.e.after about 18 days of the alleged incident and with delay of 16 days after registration of FIR, whereby, apart from applicant Raja Imran Khan Jalbani, he has also implicated two others, namely, Qurban and Zameer. They further submit that the parties are well-known to each other, as 09 accused implicated in the FIR are named therein with their full particulars/bio-data. Learned Counsel submit that the complainant in further statement has not assigned any role against the applicant. They also submit that per FIR pivotal role of committing murders of deceased and causing injuries to the injured is assigned to the nominated accused persons, whereas no active role is attributed to three unidentified accused, which include the present applicant. Learned counsel submit that trial Court though has granted bail to co-accused Qurban on 21.6.2023 on almost same allegations; whereas such prayer of the applicant has been declined on the ground that he is nominated in the FIR, though he is not. They submit that law of parity attracts in this case, therefore, applicant may be granted bail. In support of their contentions, they placed reliance in the case of Hidayatullah v. The State (2023 SCMR172).
5. Mr. Imran Mobeen Khan, learned Assistant Prosecutor General appearing for the State opposes the bail application, on the grounds that applicant has been implicated in the further/supplementary statement of complainant; besides injured Abdul Lateef and Abbas Ali have also implicated him through their respective further/supplementary statement as well as 161 Cr.PC statements. He, however, could not controvert the fact that the applicant is not named in the FIR, besides on identical role co-accused Qurban has been bailed out by the trial Court.
6. Mr. Ghulam Murtaza Tunio, learned Counsel for the complainant, does not oppose the bail application.
7. Heard learned counsel for the parties and perused the material made available on record.
8. Undisputedly, the main role of causing fatal injuries to the deceased as well as injured is assigned to nominated co-accused, who all are still at large except Ghulam Rasool and Muhammad Hayat, who after having been arrested are facing trial. As far as present applicant Raja Imran Khan is concerned, he is not named in the FIR; however, at belated stage i.e. on 28.11.2022 the complainant, injured Abdul Lateef and Abbas Ali have implicated him through their respective further/supplementary statement as well as 161 Cr.PC statements. Moreover, both parties i.e. the complainant and the accused persons belonging to same community having residence in the same vicinity, appear to be well-known to each other, which fact finds further support from the fact that the complainant has named 09 accused persons with their full particulars/bio-data i.e., names, parentage with caste and residence. In such circumstances, implication of the applicant as one of the three unidentified accused through supplementary statements after 18 days of the occurrence and 16 days of the FIR, does not appear to be convincing. The inordinate and scandalous delay in recording further/supplementary statement as well as 161 Cr.P.C statements of above-named injured PWs does not find any explanation on record. Such conduct of the prosecution while discharging its legal duties casts serious doubt upon its veracity, which brings the case of applicant within the purview of further enquiry as envisaged under sub-section (2) to Section 497, Cr.PC, entitling him to the concession of bail. It could not gather the wisdom whether the trial Court being seized of the matter had overlooked and did not peruse the record in respect of present applicant and co-accused Qurban by holding that the applicant is nominated in the FIR, though on bare perusal thereof his name does not find mention in it. In such eventuality particularly when the co-accused Qurban has been granted bail by the trial Court, the case of applicant is completely at par with him, as no active role is assigned to the present applicant even in the further/supplementary statement of complainant. Nothing incriminating is shown to have been recovered from present applicant, connecting him with the commission of alleged offence in any manner. In the case of MOLANA ABDUL AZIZ V/S THE STATE (2009 SCMR 1210) the Apex Court has held that if sufficient incriminating material is lacking prima facie connecting the accused with the commission of alleged offence, presumption of innocence of accused is always paramount irrespective of the heinousness of the alleged offence, consequently, the accused was admitted to bail. If further statements of the complainants and his witnesses are believed to be true then why they remained mum and did not implicate the present accused with his name and parentage in the FIR promptly despite the fact that the present accused was known earlier to them. It was done with inordinate delay of 18 days of the occurrence and 16 days of the FIR, as such no much reliance could be placed upon further statements of the complainant and his witnesses. It is settled law that supplementary statement is not more than a statement recorded under section 161 Cr.P.C. In this regard, reference is invited to the case reported as KHALID JAVED VS. THE STATE (2003 SCMR 1419), wherein, at page 1933, the Hon’ble Supreme Court of Pakistan, has been pleased to observe that “As far as supplementary statement of a complainant is concerned its value is not more than a statement under section 161 Cr.P.C. In case of HAJI MUHAMMAD NAZIR V/S THE STATE (2008 SCMR 807) it is held that bail does not mean acquittal of accused but only change of custody from government agencies to the sureties, who on furnishing bond take responsibility to produce the accused whenever and wherever he is required to be produced.
9. Upshot of above discussion is that involvement of applicant in the crime, as alleged by the complainant and two PWs, without any corroborating material, is yet to be determined after the scrutiny of evidence that will come at the trial. No doubt, in a post arrest bail only tentative assessment is to be made and deeper appreciation or evaluation of evidence at this stage is neither desirable nor permissible, but benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. Reliance is placed upon the case titled as “Resham Khan & another Vs. The State” (2021 SCMR 2011), wherein the Hon’ble Supreme Court of Pakistan in paragraph No.8 of the judgment has held as under:-
“…The insight and astuteness of further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry presupposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime. It is well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not…”
10. In view of the above facts and on the basis of tentative assessment of the material available on record, I am of the view that the prosecution case cannot be considered as free from doubt and it is a case of further inquiry into the matter. Resultantly, applicant Raja Imran Khan Jalbani has made out prima facie case for grant of bail.
11. By a short order dated 26.10.2023, the instant application was allowed and applicant was ordered to be released on bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees two hundred thousand) and P.R bond in the like amount to the satisfaction of trial Court. Above are the reasons for the said short order.
12. Needless to observe that the observations made hereinabove are tentative in nature and the learned trial court shall not be prejudiced by any such observations and shall decide the case on merits in view of the evidence available on record, as early as possible.
JUDG E