MUHAMMAD RAFIQUE And Another vs THE STATE

1. ORDER MUHAMMAD TASNIM, J.---The Applicant is booked in Crime No. 149 of 2009 registered with Police Station Tharu Shah, for offences under sections 302, 34 P. P. C .

2. It is alleged in the F.I.R. That the complainant along with his family members was proceeding towards Hyderabad and on the way somewhere near Tharu Shah, at about 1145 hour's, three persons, out of whom two were armed with Pistols and the third was armed with Repeater were seen in the light of vehicle, whose faces were opened and the complainant would identify them, if they are seen again. The persons armed with Pistols signaled the vehicle to stop and called the person armed with Repeater saying that the brother of complainant should not be spared and be murdered, fired upon him, who became injured and, accordingly, was taken to Tharu Shah Hospital and subsequently, died, hence this F.I.R. Was lodged.

3. Learned counsel for the applicant submits that there is delay of three days in lodging of F.I.R. Which has not been explained by the Prosecution. He further says that none of the accused is nominated in F.I.R. He also says that present applicant was implicated on the basis of statement of complainant under section 164, Cr.P.C, which was recorded after four days of the occurrence.

4. Learned counsel further says that no doubt, as per statement, present applicant was armed with Pistol but no firing was attributed to him, nor he caused any injury to anyone. In support of his contentions, he relied upon Mumtaz ,Hussain and 5 others v. The State (1996 On the other hand, learned A.P.-G. Has tried to justify the delay in lodging of F.I.R. By contending that complainant party approached the Police Station after the burial of deceased. However, he could not put forth any justification for delay in recording statement of complainant under section 164, Cr.P.C. He also admits that no firing was attributed to the present applicant nor any injury was caused by him to any person. However, learned A.P.-G. Seriously opposed the grant of bail on the ground that specific role has been assigned to the present applicant and he is not entitled to bail. In support of his contentions, he relied upon Raza Rashid v. The State 1988 SCM R 281.

5. I have heard the learned counsel for parties and have gone through the record as well as the case-law cited at the bar.

6. It is admitted position that name of applicant does not find place in F.I.R. It is also admitted position that delay in lodging of F.I.R. Has not been properly explained by the Prosecution. It is also admitted position that applicant was implicated on the basis of statement of complainant under section 164, Cr.P.C. Which was recorded after 4 days of occurrence and delay of such recording of statement has not been A explained by the Prosecution. The aforesaid grounds are enough to enlarge the applicant on bail. The last point, urged by learned counsel for the applicant that no role was assigned to present applicant, was vehemently objected to by learned A.P.-G., who says that present applicant had stopped the vehicle. If he had not stopped the vehicle, the evidence should not have taken place. The Judgment cited by learned A.P.-G. Is distinguishable on facts. In the reported Judgment, the applicant, who was denied bail, had entered into the house by break opening the lock. In this way role was assigned to accused in reported case. At the bail stage, tentative assessm ent is to be made and only it is to be seen as to whether the applicant is, prima facie, connected with the commission of offence or not. In my opinion, this is a fit case in which further enquiry in terms of subsection (2) of section 497, Cr.P.C. Is called for.

7. Accordingly, I admit the applicant to bail on his furnishing solvent surety in the sum of Rs. 2,00,000 (Rupees Two Lac) and execution of Personal Bonds in the like amount to the satisfaction of the Trial Court.