SHAFIQUE HUSSAIN vs THE STATE

ORDER

1. ' SAJJAD ALI SHAH, J.--- Complainant Babar Khan on 21st September 2005, at 2030 hours registered a first information report at Police Station Sarkand stating therein that they are three brothers and the mental condition of his father Moula Din is not good. His elder brother Imran had a separate residence and a hotel which was being run by Imran with the help of complainant. It was asserted that Imran's wife's brothers Toufique, Shafique and uncle Ali Akbar due to some dispute were angry with him and used to say that they would kill Imran. On 18th September, 2005, the complainant was present in the hotel along with his brother Imran who left for his house to milk the buffalo and at about 6-00 p.m. The complainant heard fire shots from his house, he reached there and saw Toufique with country made pistol. Shafique with single barrel gun and Ali Akbar with rifle raising slogans that they have killed Imran. Imran had fire-arm injury on right side of his chest and on asking he disclosed to the complainant that Toufique, Shafique and Ali Akbar had injured him and, thereafter, he died. The other relatives of the complainant namely Aijaz and Muneer also came running to whom the complainant narrated the incident. Thereafter the complainant lost his senses due to shock and his relatives and other co-villagers buried Imran in the village graveyard without post-mortem. The complainant after three days gained his senses and got the aforesaid F.I.R. Registered under section 302/34, P.P.C. Against applicant Shafique Hussain his brother Toufique and uncle Ali Akbar.

2. ' Mr. Shah while arguing bail plea on behalf of applicant Shafique Hussain has contended that the applicant has been falsely implicated in the present case due to enmity which is established from the bare reading of F.I.R. It was contended by the learned counsel that there is a delay of 74 hours in lodging the F.I.R. And the explanation given for such delay is falsified from the fact that the complainant accompanied his father on the next day of alleged incident i,e, 19-9-2005, to the police station along with Nekmard where his father lodged N.C. Report No,4 at 0910 hours stating that the deceased has committed suicide due to exchange of hot words with him by firing gun shot at himself and no one is guilty and therefore, they do not intend to lodge F.I.R., similar statement of the complainant under section 161, Cr.P.C. Was also recorded by the police, therefore, the case has become of two versions which entitles the applicant at least to the concession of bail.

3. It was further contended that even otherwise no specific role has been assigned to the applicant and the accusation against the applicant in the F.I.R. Are general in nature and in absence of any eye-witness, the applicant is entitled to the concession of bail.

4. ' It was next contended that the post-mortem report which was conducted on 20-10-2005 after exhuming the body reflects that the death was caused from shock and hemorrhage resulting from shot gun injury, though shot gun is shown to have been recovered from the applicant with an empty in it but the Ballistic Expert Report reflect that the shot was not fired from the gun recovered from the accused, therefore, the recovery is of no consequence. In the end learned counsel has submitted that from all the above stated facts it appears that the case is of further inquiry which entitles the applicant to the concession of bail. In support of his contention learned counsel has placed reliance on the cases of Lakhmir Kurio v. State 2005 YLR 1467; Allah Bux v. State 2005 SLJ 697; Rano and 2 others v. State 2003 M LD 1610; Syed Shabat Raza Zaidi v. State 2004 PCr.LJ 910; Muhammad Aslam and others v. State 1997 SCM R 251; Amir v. State PLD 1972 SC 277 and Muhammad Amin alias Irfan v. State 2004 SCM R 1560.

5. ' On the other hand Mr. Ansari learned State counsel has half heartedly opposed the bail application but was not in a position to rebut any of the assertions made by the learned counsel for the applicant as to the lodging of N.C. Report. Medical report or the report of Ballistic Expert.

6. ' I have heard the learned counsel for the respective parties at length and have perused the record and the case-law relied upon by the learned counsel for the applicant.

7. The prosecution has not denied the registration of N.C. Report by the father of deceased and the recording of statement of his brother wherein they have stated that the deceased has committed suicide, however, such report as well as the statement goes against the postmortem report as placed on record by Mr. Shah which describes external injuries as two circular holes on back of left side of chest each measuring about 2 c.m. In diameter since the injury as evident from the postmortem report was caused on the backside of chest, therefore, the statement to the extent of suicide become dubious. Notwithstanding such report negates the ground specified in the F.I.R.

8. Explaining the delay. It is further important that there is no eye-witness to the incident and the accusation against the present applicant is general in nature and no specific role has been assigned to him. The gun recovered from the accused/applicant with the negative report from the Ballistic Expert., non-recovery of empties from the place of incident, blood-stained clothes produced before the Investigating Officer without holes and no eyewitness to the incident leaves no doubt in my mind that the case is of further inquiry within the ambit of section 497(2), Cr.P.C.

9. ' In the circumstances, the applicant is entitled to the concession of bail upon furnishing surety in the sum of Rs,5,00,000 (five hundred thousand) and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.