MUHAMMAD SHAHBAN and another vs THE STATE

ORDER

1. ' SHAHID ANWAR BAJWA, J.--- F A.R. No, 241 of 2010 was recorded at P.S., Daharki on 4-9-2010 for an incident alleged to have taken place on 29-4-2010. Complainant stated that harsh words had been exchanged 3/4 days prior to the incident and on the afternoon of 29-4-2010, complainant and his father were returning home when on their way at 3-30 p.m. They were intercepted by five persons on two motorcycles including the present two applicants. Applicant No, 1 is alleged to have given proverbial challenge and, thereafter, it is alleged in the F.I.R. That both these applicants caused lathi blow to father of complainant, which hit him on chin and other parts of his body. Father fell down and the other two co-accused persons caused him kicks on testicles and other parts of his body. One co-accused who was armed' with hatched, chased complainant. By that time villagers were attracted and the accused fled on their motorcycles.

2. ' Learned counsel for the applicants submitted that there is delay of five months in recording of F.I.R.

3. And even application under section 22-A, Cr.P.C. Was filed four months after the alleged incident and there has not been any explanation for this delay. Learned counsel submitted that post mortem was conducted on 1-5-2010 at 12-30 p.m. That is after 45 hours of death and again there is no explanation for the delay. Learned counsel relied upon Ahmed v. The State, 2007 PCr.LJ 987, Kouro v. The State, 2004 YLR 2434 and Faqir Muhammad and 2 others v. The State, 2007 M LD 340.

4. ' Mr. Zulfiqar Ali Jatoi, learned D.P.-G., stated that it is S.H.O., which kept complainant on false hopes and, therefore, did not record F.I.R. As far as various statements made in the post mortem report like the time at which post mortem was conducted (it indicated a period of 45 hours between death and post mortem) and the time stated in the post mortem, which is stated to be 18 hours, are concerned learned D.P.G. Submitted that it would require deeper appreciation of evidence, which exercise cannot be undertaken, at bail stage. Learned counsel relied upon Haji Gulu Khan v.

5. The State, 1995 SCM R 1765. Learned counsel also relied upon Riaz Ahmed v. The State, 2009 SCM R 725.

6. ' Mr. Qurban Ali Malano, learned counsel for 'the applicants, explained delay in conducting post mortem by stating that firstly dead body was taken to Raiti Chowki from there it was taken to local hospital and from there it was taken to Daharki Hospital where post mortem was conducted.

7. ' I have considered the submissions made by the learned counsel and also have gone through the record.

8. ' In Ahmed's case (supra) three accused were alleged to have fired on deceased, Azad. Court found it strange that complainant had been able to state as to which accused fired at which part of body of the deceased. Two of such accused were let off by Police. Learned Single Bench observed that case for further inquiry was made out. In Kouro's case (supra) complainant stated that he heard that somebody was calling his father outside his house. He and his father responded to the. Call. Two persons stated that they wanted to talk to the father and took him towards west side in a cotton crop. Three hours later, complainant heard a call from backside of the house and he went there along with two uncles and saw four persons who told him to collect dead body of his father. One of the four persons was Kouro. A Single Judge of this Court observed that involvement of accused in the crime requires further inquiry because F.I.R. Was delayed without any plausible explanation and, therefore, did not prima facie inspire confidence. Secondly, it noticed fact that it was alleged in the F.I.R. That father was called out and went with them for talking and for three hours he did not return. Primary ground, which prevailed with the Court was delay in lodging of F.I.R.

9. In Faqir Muhammad's case (supra) there was 16 hours delay in lodging of F.I.R. Additional factor considered in the case was that neither complainant nor witnesses had seen any of the accused firing and killing deceased. In Riaz Ahmed's case (supra) case report does not even disclose as to what were facts of the incident. In Gulu Khan's case (supra), there was delay of about four hours in lodging of F.I.R. And the Supreme Court observed as under:-- "The F.I.R. In the case was lodged by Haji Gulu Khan on being informed by his relative Saleh Muhammad who in turn was informed by Missal Khan who was allegedly present with the deceased at the time of incident. Whether these circumstances justified the delay in registering the F.I.R. In the case or there were other plausible explanations for the delay in filing the F.I.R. Is once again a question which can be gone into at the trial only and not at the stage of decision of the bail application in the case".

10. In the present case, there are two major factors, which have persuaded me to come to the conclusion that there is not only doubt regarding the story of prosecution but case of further inquiry is made out. There is five months' delay in lodging of FIR. And there is no explanation, plausible or otherwise, for such inordinate long delay. Secondly, in the post mortem report only one injury is stated: "one lacerated wound measuring 5x2 cm muscle deep over the chin of face". In the F.I.R., it is alleged that present two applicants with lathes attacked the deceased and injury is only one. In the opinion part, doctor stated that from external and internal examination of the deceased, he was of the opinion that cause of death could only be determined after the viscera's, which were taken and sent for pathologic examination, are analyzed and the report is submitted. That report subsequently did not render any positive result. This creates question of further inquiry.

11. Consequently, this bail application is allowed and the bail, already granted to the applicants, is confirmed on the same terms.