MUHAMMAD ASLAM Versus State

ORDER

1. AHMED ALI M. SHAIKH, J.--- Through this application, the applicant Muhammad Aslam seeks post-arrest bail in Crime No.96 of 2009 of Police Station Market Larkana registered under section 302/34 P.P.C.

2. Per prosecution, this incident took place on 17-5-2009 at 1-15 p.m. The F.I.R. in this respect was registered by complainant Deedar Ali to the effect that present applicant along with co-accused Sanaullah and Zakaullah in collusion with each other duly armed with pistols have committed murder of his brother Altaf Hussain by making fire-arm shots of pistols.

3. It is, inter alia, contended that the applicant is innocent and has been falsely implicated in this case due to F.I.R. No.84 of 2009 which was lodged by co-accused Sanaullah against the complainant party in which the present applicant is a witness. The case of present applicant is distinguishable to the other accused persons as his presence at the spot at the time of incident is highly doubtful, two prosecution witnesses of the area have stated that they had seen two accused on the motorcycle at the time of the incident whereas two other prosecution witnesses negated the presence of the present applicant at the spot thus it is a case of two versions and it is settled principle of law that in such a case benefit must be resolved in favour of the accused. It is further contended that no incriminating article has been recovered from the applicant. The alleged incident took place at the busy road of the area and two independent witnesses namely Asif Ali and Abid Hussain of the area and in their respective 161, Cr.P.C. statements did not implicate the present applicant in the commission of the alleged offence. The present applicant has been implicated on the statements of interested witnesses viz. Muhammad Yousuf and Aftab Ali who are cousin and brother respectively of the deceased and the complainant. That there is general allegation and no specific role has been attributed to the present applicant, the ocular version is belied by the medical evidence, there are no reasonable grounds for believing that the applicant/accused has committed the alleged offence and that the case of the present applicant falls under section 497(2) Cr.P.C. and requires further enquiry.

4. In support of his contentions, learned counsel for the applicant has relied upon:

(i) 2008 SCMR 182, (ii) Cr. Petition No.56/K-2009, (iii) 1984 SCMR 521, (iv) 1986 SCMR 1978, (v) 1987 SCMR 485, (vi) 1994 SCMR 1728, (vii) 2001 P.Cr.L.J.1692, (viii) 1997 MLD 1691, (ix) 2002 SCMR 629, (x) PLD 1995 SC 34 and (xi) PLD 1996 SC 241.

5. Conversely, Mr. Abdullah Rajput, A.P.G. for the State has opposed bail plea of the applicant on the ground that his name appears in the F.I.R. which was promptly lodged and the applicant along with co-accused have committed the murder of the deceased by causing him fire-arm injuries. The eye-witnesses namely Aftab Ali and Muhammad Yousuf have implicated the applicant in their respective 161, Cr.P.C. statements and the so-called independent witnesses have nothing to do with the alleged incident and, in fact, they have been introduced by the police with the connivance of the applicant.

6. The complainant Deedar Ali has adopted the arguments of learned A.P.G.

7. Heard learned counsel for the applicant and the learned A.P.G. for the State as well as the complainant and perused the material available on the record.

8. The alleged incident had taken place on 17-5-2009 at 1-15 p.m. and the F.I.R. was lodged on the same day at 1-45 p.m. The complainant as well as eye-witnesses Aftab Ali and Muhammad Yousuf have implicated the present applicant in the commission of above offence. Per prosecution, the present applicant along with co-accused, duly armed with deadly weapons, came on the place of occurrence on a motorcycle and all the three accused persons fired pistol shots upon the deceased which hit him. During the investigation police recorded statements of P.Ws. Deedar Ali and Abdul Sattar who in their respective 161, Cr.P.C. statements have categorically stated that on the date of the occurrence they along with the present applicant Muhammad Aslam went to Dr. Muhammad Hussain Bhutto for treatment of Muhammad Aslam as he was suffering from fever. Apart from these witnesses. 161, Cr.P.C. statement of Abid Hussain and Asif Ali were also recorded during the investigation who stated that at the time of occurrence they were present at the place of incident and they saw that two persons came on the motorcycle and committed murder of the deceased by causing him fire-arm injuries. The record reveals that statements of above said witnesses were recorded on 5-6-2009 i.e. after delay of 18 days of the incident and it is very strange as to why they remained mum for such a long time. Not only this, but the P.Ws. Abid Hussain and Asif Ali are also not residents of the locality where the alleged incident took place. Dr. Muhammad Hussain was not examined during the investigation by the Investigating Officer in order to ascertain the truth or falsehood of the statements of P Ws. Deedar Ali and Abdul Sattar who are said to be relatives of the present applicant and the record further reveals that during investigation neither the present applicant was arrested nor interrogated by the Investigating Officer, therefore in his absence how the statements of so-called independent witnesses were recorded. This is a mystery which smells mala fide on the part of the Investigating Officer. On the statements of the above-named witnesses the name of the present applicant was placed in column No.2 of th^ challan but the learned Magistrate had taken cognizance and he war oined as an accused. The applicant did not impugn the order of learned Magistrate whereby he was joined as accused. So far as the inconsistency between the ocular version and the medical evidence is concerned, the same cannot be taken into consideration at this stage as laid down by honourable Supreme Court in Abdul Hayee's case reported in 1996 SCMR 555.

9. The gist of the arguments advanced at the bar by learned counsel for the applicant is that in view of the statements of independent witnesses, this is a case of two versions and at this stage benefit of the same must be extended in favour of the applicant. The above argument of the learned counsel is devoid of force as at this stage if this plea is accepted, then the same would amount to discarding the evidence of eye-witnesses which is not permissible at this stage. In the case of Khalda Bibi v. Nadeem Baig reported in PLD 2009 SC 440, the honourable Supreme Court cancelled the bail granted to the accused in similar circumstances and held as under:

10. "Court under S.497(2) Cr.P.C. was not to make probe into defence version in order to advance a plea of bail, rather it had to tentatively assess the material produced before it to see if reasonable grounds exited to believe, if prima facie, involvement of accused in the commission of offence---If the plea on the basis of which the accused had been released on bail was accepted, would impugn the version of the eye-witness which had been discarded at the initial stage of the case by observing contra to the version of the ocular witnesses; which course was at all not permissible and later on no such evidence was furnished, then it would not be free from doubt and in accord with S.497(2), Cr.P.C.---Evidence of eye-witnesses in the present case, had been discarded even in view of the medical opinion by the trial Court, as well as by the High Court---Police, during the investigation was not required to examine hundreds of people in order to enquire as to whether the accused was involved in the offence or not---Police was required to consider the material available on the record and not to disregard the eye-witnesses in support to say that he was not involved in the commission of the offence, and thus, would not only be entitled to grant of bail but at the same time to earn acquittal---Practice adopted by the trial Court as well as by the High Court in peculiar circumstances of the case was not appreciated by the Supreme Court---Reasons on which bail had been extended to the accused were not sustainable in law---Supreme Court converted petition for Leave to Appeal into Appeal and cancelled the bail granted to accused by High Court---Accused present in the Court was ordered to be taken into custody and be dealt with in accordance with law."

11. So far as the contention of the learned counsel for the applicant that there is general allegation against the applicant and co-accused and no specific role is attributed to the present applicant is concerned, suffice it to say that the same cannot be determined at this stage as it is a settled principle of law that deeper appreciation of evidence is not permissible at the bail stage which could only be done at the trial. In this respect, I am fortified by the decision given in the case of Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 wherein the honourable Supreme Court while converting the petition for Leave to Appeal into appeal, cancelled the bail allowed to the accused by High Court with the following observations:--

12. "Accused was specifically charged with the firing on the deceased along with co-accused both in the F.I.R. as well as in the statements of witnesses recorded under Ss.161 and 164, Cr.P.C.---Fact that such allegations were only general and no specific injury on the deceased was attributed to the accused, could not make the case against him one of further inquiry---Question whether the witnesses had made improvements in their earlier statements and its effect on the prosecution case and whether circumstances appearing in the case justified the delay in registering the F.I.R. required deeper appreciation of evidence which could only be done at the trial---High Court by granting bail to accused had exercised discretion on a totally wrong premises."

13. The case-law relied upon by the learned counsel for the applicant, with all respect, is distinguishable and not attracted to the facts of the present case.

14. In view of above facts and circumstances and the dictum laid down by the Supreme Court, I am of the considered view that a prima facie case exists against the applicant which disentitles him to the concession of bail, hence his bail application merits no consideration and the same is dismissed accordingly.

15. Before parting the case, it is made clear that the observations made in this order are tentative in nature and the same shall not prejudice the case of either party at the trial. The applicant would also be at liberty to move fresh bail application after recording evidence of some material witnesses.

16. H.B.T./M-50/K Bail refused.