BASHIR AHMED Versus THE STATE

ORDER

Through this single order, I propose to dispose of Criminal Miscellaneous Nos.724/B of 2002 and 883/B of 2002 as both the petitions arise out of same F.I.R.

2. The petitioner's claim bail after arrest in case F.I.R. No.453 of 2001, dated 27‑10‑2001 under sections 302/109, P.P.C. registered at Police Station, Arifwala Saddar, District Pakpattan.

3. Briefly facts of the case as given in the F.I.R. are that on 27‑10‑2001 at about 4‑30 p.m. son of the complainant was proceeding to purchase cigarettes. The complainant was also following him. In the meanwhile Manzoor Ahmad alias Jhoora co‑accused came there armed with pistol .30 bore and raised Lalkara that he would not spare Sajid Khalil son of the complainant and fired five shots at him which hit him on various parts of the body. He fell down. On raising alarm P.Ws. attracted to the spot and witnessed the occurrence. The accused Manzoor Ahmad decamped alongwith his weapon of offence.

4. The motive as alleged is that the deceased and the accused had some political rivalry for which the deceased was killed:

5. On 9‑12‑2001 supplementary statement of the complainant was recorded. According to which Iftikhar and Sultan P.Ws. told the complainant on 28‑10‑2001 that the present petitioners alongwith their co‑accused were hatching conspiracy on 27‑10‑2001 for killing the complainant's son.

6. It is contended by learned counsel for the petitioners that the occurrence took place on 27‑10‑2001 but the supplementary statement was recorded on 9‑12‑2001, therefore, the same carries no weight at least for the bail stage. It is further submitted that both the petitioners have been declared innocent by D.S.P. who has investigated the case.

7. On the other hand learned counsel for the complainant contends that the challan has been submitted in the Court of competent jurisdiction and the same is fixed for 11‑5‑2002 foc framing of charge against the accused persons. It is further submitted that the complainant had been trying his level best to get the supplementary statement recorded by the police but on their refusal the complainant filed number of applications in the police hierarchy for the same. The first in line was filed on 26‑11‑2001 whereafter ultimately supplementary statement was recorded on 9‑12‑2001. It is lastly submitted on the strength of 1985 SCMR 195 that definite finding is required to make a case of further inquiry which cannot be made in the instant case.

8. have considered the arguments of learned counsel for the parties

9. Admittedly, in the F.I.R. the petitioners were not named, and they were impleaded as an accused after recording the supplementary statement of the complainant on 9‑12‑2001. It is admitted by learned counsel for the complainant that first application for getting the supplementary statement recorded was made on 26‑11‑2001 about one month after the occurrence while the P. Ws. Iftikhar and Sultan informed the complainant about the conspiracy on 28‑10‑2001, therefore, this delay on the part of the complainant cannot be overlooked at this stage. As held by Honourable Supreme Court in PLD 1989 SC 589 although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioners appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. In the circumstances of the case when the petitioners have been involved in a case through supplementary statements recorded with a considerable delay, the petitioners have successfully made out a case of further inquiry. Accordingly they are admitted to bail in the sum of Rs.80,000 with one surety each in the like amount to the satisfaction of trial Court.

H.B.T./B‑172/L Bail granted