SALMAN AKHTAR alias SALMANI vs The STATE and another

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant petition filed under section 497, Cr.P.C. Salman Akhtar alias Salmani/petitioner has sought for his post-arrest bail in case FIR No,110/2016, dated 06.03.2016, offence under sections 302, 148, 149, P.P.C., registered with Police Station Saddar Daska, Sialkot, at the instance of Qamar Abbas son of Sultan Ali, complainant respondent No,2.

2. Prosecution story in brief as per contents of the crime report, is that on 06.03.2016 at 6:00 p.m. the complainant along with Muhammad Afzal son of Ansar Ali was standing at Nasir General Store in his village while Nadeem Abbas son of the complainant was sitting on a chair at some distance. All of sudden accused Wajid Ali armed with pump action, Shamshad alias Chand armed with Kalashnikov, Ali Raza armed with Kalashnikov, Fiaz alias Faizi armed with Kalashnikov along with two unknown accused persons armed with firearms, emerged at the road. Wajid raised lalkara that Nadeem should be taught lesson for quarrelling and he be done to death on which Shamshad alias Chand made a fire shot upon Nadeem Abbas which landed at his abdomen, who after receipt of injury fell down on the ground. The other accused persons also made firing, which landed at different parts of the body of Nadeem Abbas, who subsequently succumbed to the injuries. The petitioner was brought in this case through supplementary statement.

3. At the very outset it has been argued by learned counsel for the petitioner that the petitioner is innocent, who has falsely been involved in this case against the actual facts and circumstances.

Learned counsel vehemently contends that the petitioner was not named in the crime report, who was brought in through supplementary statement recorded on the same day wherein role of generalized nature was ascribed to him. Further contends that out of four nominated accused persons, three namely Wajid Ali, Shamshad alias Chand and Danish Raza were declared innocent by the Investigating Officer and their names were placed in column No,2 of the report prepared under section 173, Cr.P.C. whereas it was opined by the Investigating Officer opined that fourth nominated accused was though carrying firearm weapon at the relevant time, however, he was present at a distant place and he didn't play any overt act during the occurrence. It is further argued that though general allegation has been alleged by the complainant in supplementary statement, however, the PWs while recording their statements under section 161, Cr.P.C. have ascribed specific role, which negates the prosecution version recorded in the FIR. Learned counsel submits that though Kalashnikov has been recovered from the petitioner, however, crime empties were dispatched to the concerned quarter at a belated stage, hence its veracity shall be determined during the course of trial after recording prosecution version. It is argued that facts and circumstances brought forth on record make the prosecution case against the petitioner one of further inquiry into his guilt falling within the ambit of section 497(2), Cr.P.C. It is lastly argued that the petitioner is behind the bars since the date of his arrest and the investigation being complete his person is no more required by the police for further investigation, therefore, it is a fit case for concession of bail.

4. As against above, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised on behalf of the petitioner. Learned counsel for the complainant contends that although the petitioner was not named in the crime report, however, he was brought in through supplementary statement recorded on the same day.

Further contends that though the complainant had assigned role of generalized nature to the petitioner, however, the PWs in their statements recorded under Section 161, have ascribed definite role to the petitioner qua making firing upon the deceased. Moreover, during the course of investigation the petitioner was held main stalwart of the occurrence. In the end learned counsel contends that there is sufficient/ample incriminating material available on record to connect the petitioner with the occurrence in which young son of the complainant was done to death, therefore, he does not deserve the concession of bail.

5. Arguments advanced from both sides have been heard. I have also gone through the record available on file.

6. There is no second cavil to this proposition that the petitioner was not named in the crime report although it is an admitted fact that both the parties are residents of the same area and are members of the same clan (brotheri) coupled with the fact that the occurrence had taken place in broad daylight. Perusal of record further reflects that out of four nominated accused persons, three were declared innocent by the Investigating Officer and their names were placed in column No,2 of the report prepared in terms of section 173, Cr.P.C, which has not been challenged so far. Moreover, it is an admitted fact that there is gross contradiction between the statements of the PWs recorded under section 161, Cr.P.C. and the version advanced by the complainant in the FIR, as well as, in the supplementary statement with regard to role ascribed to the petitioner. It is established principle of law that if statement of the PW is at variance to the version advanced by the complainant, it would be dangerous to rely upon such statement. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Din v. The State (PLD 1959 Supreme Court (Pak.) 491)

"(b) Evidence---Eye-witness naming person as accused not mentioned in First Information Report---Dangerous to act on evidence of such witness."

As far as recovery of Kalashnikov allegedly effected from the petitioner is concerned, as crime empties were dispatched to the concerned quarter at a belated stage, therefore, authenticity of the same shall be determined during the course of trial after recording the prosecution evidence.

7. All the afore-stated facts mentioned above create dent in the authenticity of the prosecution story. It is established principle enunciated by the superior courts of the country that benefit of doubt can be extended even at bail stage. Respectful reliance in this regard is placed in the case of Amir v. The State (PLD 1972 SC 277). Similar view was held in the case of Manzoor and 4 others v.

The State (PLD 1972 SC 81). The petitioner is stated to be behind the bars since the date of his arrest and investigation being complete his person is no more required by the police for further investigation.

8. For the foregoing reasons this Court is persuaded to hold that there exist sufficient grounds calling for further probe into the guilt of the accused/petitioner as such his case falls within ambit of section 497(2), Cr.P.C. Resultantly, by allowing this petition the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000/- with two sureties each in the like amount to the satisfaction of learned trial court.