MAZHAR IQBAL vs THE STATE and another

' RAHMAT HUSSAIN JAFFERI, J.---On 28-10-2008 at 10-00 p.m. The complainant / petitioner lodged F.I.R. With Police Station Khanwat, District Jamshoro, alleging therein that he along with other company officials was travelling in .a vehicle when at 10-10 hours they reached the curve of Habibullah More on road leading towards coal mine, they saw a vehicle parked there and ten persons were committing a dacoity. On the head-lights of the vehicle they identified three, persons one of them was respondent No,2 (hereinafter referred to as "the respondent"). He was armed with Kalashnikov. After seeing the vehicle of complainant the respondent disclosed that the vehicle belonged to the Coal Mine, therefore, the same might not be spared. Thereafter, the respondent and other persons fired at the vehicle with a result Liaqat Ali, Haji Abid Hussain and Zahoor Ahmed received injuries, out of them Liaqat Ali and Haji Abid Hussain died. Thereafter the culprits ran away.

The complainant took the injured to the police post where he informed the incident and then took the injured to the hospital at Jamshoro, where he was treated. Thereafter he went to the Police Station and lodged the report. The respondent moved an application for bail before arrest. Interim bail was granted but subsequently it was dismissed and was taken into custody by the trial Court.

Thereafter the respondent filed application for bail after arrest which was dismissed by the learned Sessions Judge. On appeal the learned High Court granted the bail to the respondent under impugned judgment. Hence, the petitioner has filed this petition for cancellation of bail.

2. Learned counsel for the petitioner has stated that the High Court has erred in granting bail solely on the ground of delay in lodging the F.I.R. After two days of the incident; that the said ground is not sufficient for grant of bail as the name of the petitioner with specific role has been assigned to him in the F.I.R. And that the witnesses have supported the case of the prosecution. Learned Additional Prosecutor-General has supported the arguments of the learned counsel for the petitioner. The respondent was served. On the last date of hearing he sought adjournment to engage a counsel but today he has appeared and stated that he is unable to engage a counsel, therefore, he will argue the case on his own. Hence, we have also heard the respondent in person. He has stated that he has been involved in the case due to enmity; that he was not present at the place of incident and that the F.I.R. Has been lodged after consultation with a delay of two days.

3. We find that the name of the respondent is mentioned in the F.I.R. He was identified by the complainant on head-light of the vehicle. The respondent is already known to the complainant. He also made firing with his Kalashnikov with the result two persons lost their lives and one became injured. As such specific role has been assigned to him. The case of the prosecution has been fully supported by the injured and witnesses in their 161, Cr.P.C. Statements. No doubt there is delay in lodging the F.I.R. But the complainant has tried to explain such delay. However, the delay by itself is not sufficient to grant of bail unless the same is supported by other circumstances. In the present case the explanation of the delay in lodging the F.I.R., furnished by the complainant can be examined by the trial Court at the appropriate stage when the evidence is recorded in the case and the same is also subject to cross-examination. Thus in the peculiar circumstances of the instant case this requires deeper examination of the evidence which cannot be undertaken at this stage, consequently, we are of the view that there are reasonable grounds to believe that the respondent is involved in the case, hence the impugned order granting bail to the respondent is set aside. The petition is converted into appeal and allowed. The respondent is directed to surrender before the trial Court, immediately.