NADEEM Versus State

ORDER

1. MUHAMMAD TASNIM, J.--- This bail application is filed by the applicant against the order dated 9-6-2010 passed by the learned Sessions Judge, Sukkur in Cr. B.A. No.63 of 2010 whereby declining him to bail who is entangled in F.I.R. Crime No.100 of 2010 of Police Station, Pano Akil registered for an offence under sections 17/3 EHO, 402, 353, 399, 324, 147, 148, 149, P.P.C.

2. Prosecution story is that the case was initiated on an F.I.R. lodged at the instance of complainant Imdad Hussain Shambani on 26-4-2010 at 1640 hours alleging therein that the present applicant along with other co-accused duly armed with Kalashinkov, pistols and guns stopped Muhammad Murad and Ghazi who were coming to their village on their motorcycle which was being driven by Ghazi Khan in order to rob it. Due to fear they stopped the motorcycle. The accused tried to rob motorcycle but on the resistance of Murad and Ghazi present applicant Nadeem made fire upon Muhammad Murad, which hit him and he fell down by raising cries; hence the F.I.R. was lodged as stated above.

3. The learned counsel for the applicant has submitted that the incident as per F.I.R. had taken place on 23-4-2010 at 7 p.m. but F.I.R. was lodged on 26-4-2010 at 1640 hours. He further argued that the distance of the police station from the place of incident is only 10/11 kms. He has further argued that no recovery was effected from the applicant nor any empties were secured by the police nor blood-stained was secured from the place of wardat. He further argued that other co-accused namely Irshad, Fareed and Nadeem have already been admitted to bail and stated that rule of consistency be followed in this as the present applicant is also similarly placed. He further argued that first hand report made by the injured person does not contain the name of present applicant and the entire story has been cooked-up at the behest of interested person and the applicant has been illegally implicated in the matter. He further stated that the applicant is of tender age and needs concession of bail. He also submitted that there is no direct evidence connecting the present applicant with the commission of the alleged offence. He also further submitted that even statement under section 161, Cr.P.C. of injured persons were recorded after one month of the registration of F.I.R. He relied upon the cases reported as Sooba Khan v. Muhammad Ajmal (2006 SCMR 62), Muhammad Ashraf v. The State (2007 YLR 515) and Noorduddin and another v. The State (2005 MLD 1267).

4. Conversely, the learned DPG has strongly opposed the grant of bail and contended that at the bail stage appreciation of evidence cannot be gone into but a bird-eye view is to be taken into the matter available before the Court. He further stated that specific role has been assigned to the present applicant; hence he is not entitled for bail. He also submitted that while passing the order impugned in this bail application, the learned Sessions Judge has taken care of all the attending circumstances of the case and it is not to be disturbed in these proceedings. He has further submitted that though the injury has not been caused on the vital part of the body of the injured however, it is the consistent view of the superior Courts that even in case of injury not on the vital part of the body, bail has been refused by the superior Courts. He argued that the accused have been charged under section 399, P.P.C. which entails the punishment of 10 years; hence he stated that the present applicant is not entitled for concession of bail. He has relied upon the cases reported as Shahzad Ali v. The State (2002 PCr.LJ 382) and Amjad Javed v. The State (PLD 2007 336).

5. I have heard the arguments of the learned counsel for the applicant and learned DPG for the State and I have also gone through the material placed on record with their assistance.

6. No doubt the evidence cannot be appreciated at the bail stage only cursory view to the record is to be taken just to see as to whether the applicant/accused is prima facie connected with the commission of alleged offence or not. From the perusal of the first hand report submitted to the police it is apparent that injured persons had approached to the police station in time but had not named the present applicant. There is delay of about 3 days in lodging of F.I.R. but no plausible reason for such delay has been put forth. Similarly reason for recording of statement under section 161, Cr.P.C. after one month is also not plausible.

7. To support his contention the learned counsel for the applicant submitted that there was delay of three days in lodging of the F.I.R., reliance was placed upon the case of Nooruddin and others v. The State (2005 MLD 1267) (supra) wherein the learned single Judge of this Court now (Judge of honourable Supreme Court of Pakistan) while dealing with the point of delay in lodging of the F.I.R. has observed as under:

8. "There is no explanation from the side of the complainant as to where was he for those two days and why the details of the incident were not told to the police earlier to that? Furthermore the statement of Nazar Muhammad was recorded on 20-5-2004 and so is the case with P.W. Abdul Malik. Admittedly, P.W. Nazar Muhammad had injury on his foot as such, he was not in a state of unconsciousness, he could have given details of the incident to the police but the police did not record his statement or the statement P.W. Abdul Malik. Even on the date of recording the facts in 154, Cr.P.C. book there is no explanation from the side of police as to why the statement of these two witnesses were recorded after such delay. As such, the said aspect of the case has adversely affected the prosecution story."

9. Taking up the submissions of learned counsel for the applicant that the name of the present applicant was not disclosed by the injured persons in the first hand report. The learned counsel for the applicant has argued that since name of the present applicant was not disclosed in the first hand report to the police it is a fit case in which applicant be enlarged on bail as there appears to be doubt and it becomes a case of further enquiry.

10. To support the aforesaid submissions, the learned counsel has placed reliance on the aforesaid judgment. While dealing with the aforesaid issue, the learned Judge has held as under:

11. "From the broad facts of the case it is an admitted position that the incident took place on 15-5-2004 at 1-30 a.m. and just after 1-1/2 hours of the incident the complainant reached the police station along with both the injured and narrated the facts of the incident which were incorporated in the station diary in which it was alleged that some criminals were taking away the cattle of the complainant and on resistance the said criminals fired at the injured Habibullah and Nazar Muhammad therefore, he had brought them at the Police Station. After recording of the said N.C. the police took action by issuing letter to the medical office for examination of the injured witnesses. The purpose of first information report is to set the police into motion and start investigation of the case. After registration of station diary, the police started the investigation by issuing letter to the medical officer for examination of injured witnesses. As such, apparently the first information report of the case would be the station diary under which the complainant narrated some details of the incident to the police. Reliance is placed on the case of Muhammad Hussain v. State 1993 SCMR 1614. From the said facts a cognizable offence appears to have been committed therefore, the police started the investigation. In that station diary the names of the applicants are not mentioned. However, the complainant took both the injured to the hospital which is in Karampur Town where-the police station is situated."

12. With regard to grant of bail to the present applicant by following the rule of consistency, such rule can be applied in the present case as the present applicant is similarly placed. Because there is doubt as to the involvement of the applicant in the commission of offence on the ground that in the first hand report made to the police his name was not given but after three days the complainant with deliberation might had lodged the present F.I.R. implicating the present applicant in the F.I.R.

13. From the bare perusal of the final medical report it indicates that injured Ghazi Khan had sustained seven injuries but no fire-arm injuries. Injured Murad had sustained nine injuries out of which four injuries were fire-arm and five were with hard and blunt substance. Since no recovery was effected and no empty was secured from the place of wardat, the case becomes more doubtful calling further enquiry as, contemplated under section 497(2), Cr.P.C. The judgments cited by learned D.P.G. do not apply to the present case as they are distinguishable on facts.

14. In the circumstances I allow this application and admit the applicant to bail. He shall be released on bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rs. Two lac) only and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

15. Bail application stands disposed of along with listed applications.

16. A.R.K./N-39/K Bail granted.