SANAULLAH Versus State
ORDER
MUHAMMAD SALEEM JESSAR, J.--- At the very outset Mr. Manzoor Hussain Larik, Advocate for applicants Sanaullah son of Qaimuddin Ujjan and Eidal alias Eido son of Lung Ujjan, submits that he would withdraw his vakalatnama filed by him on behalf of the applicants in Cr.B.A.No.S-653/2016, as he would prefer to press Criminal Miscellaneous Application No.591/2017 filed on behalf of applicant Mst. Sharnshad/complainant (widow of deceased Muhammad Hayat).
2. As per FIR No.113/2016 registered at Police Station Gambat under sections 302, 379, 342, 34 and 337-H(2), P.P.C., in an unfortunate incident occurred on 30.06.2016 at 0030 hours of night, one Muhammad Hayat (brother of complainant Muhammad Yaqoob) was allegedly murdered by co-accused Zubair Ujjan by causing firearm injuries. The complainant further alleged that besides accused Zubair Ujjan, three unidentified persons also participated in the commission of the alleged offence, out of whom one was armed with Kalashnikov, another was having a pistol, while third one was having lathi in his hand. The accused were allegedly stealing the mangoes from their orchard. Meanwhile his brother Muhammad Hayat tried to apprehend co-accused Zubair Ujjan and PW Lal Bux attempted to apprehend the unknown accused having lathi, whereupon accused Zubair in order to commit Qatl-i-Amd of Muhammad Hayat made straight fires from his pistol upon him who fell down on the ground while the unknown accused having lathi caused lathi blows to PW Lal Bux with intention to commit his Qatl-i-Amd, while rest of the armed persons made firing in the air. Thereafter, all the accused persons fled away towards western side of the orchard. The complainant party went and noticed that Muhammad Hayat had sustained firearm injuries on left side of his chest over nipple wherefrom blood was oozing and he had expired. PW Lal Bux Ujjan had sustained injuries on his head and left arm and he was semi unconsicious. Upon fire reports and hue and cry made by complainant party many persons came running at the spot to whom complainant party narrated the above facts. After making arrangement for transport, dead body of the deceased as well as the injured were shifted to police post Khuhra wherefrom they obtained a letter for medical treatment of injured as well as postmortem of deceased and proceeded towards Government Hospital Gambat. After completion of autopsy on the dead body, complainant party returned to their village and after burial ceremony complainant appeared at PS on the following day viz. 01.07.2016 and got registered FIR.
3. After registration of the case, investigation was entrusted to SIP/SHO Abdul Jabbar of Police Station Gambat. During investigation further statement of the complainant was recorded on 24.07.2016 after about (23) days of the registration of FIR wherein he disclosed the names of present applicants Sananullah, Muhammad Ali and Eidal alias Eido. The I.O. after making formal investigation, without making any arrest of the nominated accused as well as the applicants, arrived at a conclusion that the applicants as well as co-accused Zubair Ujjan were not the real culprits of the incident and they had committed no offense. Therefore, all the applicants here-in-above including co-accused Zubair having been found innocent, were released under section 497(2), Cr.P.C. and their names were kept in column No.2 of the challan. On the other hand, the I.O. arrayed PWs. Lal Bux, Ghulam Murtaza, Yar Muhammad and one unknown person to be the real offenders of the incident and after completion of his investigation submitted report under Section 173, Cr.P.C. before the competent Court of law having jurisdiction on 15.08.2016. After submission of the report, learned Civil Judge/Judicial Magistrate Gambat did not concur with the police report and directed the I.O. to submit the challan and while taking cognizance of the case, on 15.08.2016 he ordered for issuance of NBWs against the applicants. Therefore, in compliance with the said order, challan dated 15.09.2016 was submitted in terms of section 512, Cr.P.C. placing names of all accused as absconders.
4. The applicants apprehending their arrest, applied for pre-arrest bail before Sessions Judge, Khairpur Mirs vide Cr.Bail Application No.2087/2016 and Cr.Bail Application No.2200 of 2016 respectively. Both applications were assigned to Additional Sessions Judge-IV, Khairpur Mirs who granted ad-interim pre-arrest bail to the applicants on 12.08.2016 and 20.08.2016, respectively.
5. However, after hearing the arguments advanced by the counsel for the parties, learned Additional Sessions Judge dismissed pre-arrest bail applications by means of order dated 25.09.2016 and recalled his earlier orders. The applicants have challenged the said order through instant bail applications and have approached this Court for grant of anticipatory relief in terms of Sections 497/498-A, Cr. P.C.
6. I have heard the applicants in person, learned counsel for the complainant as well as learned DPG appearing for the State and have gone through the material made available on record.
7. The applicants submit that their names are not transpiring in the FIR nor they have been assigned any active role. They further submit that though the complainant had disclosed their names through his further statement yet they along with co-accused Zubair Ujjan have been found innocent during the investigation and their names have also been kept in Column No.2 of the challan. Their further submission is that after grant of interim pre-arrest bail they have been appearing before the trial Court regularly and have not misused the concession of interim pre-arrest bail. Lastly they prayed for allowing their bail application(s).
8. Mr. Khalil Ahmed Maitlo, learned D.P.G. submits that accused Sanaullah, Eidal alias Eido and Muhammad Ali are not nominated in the FIR; however, their names were taken by the complainant in his further statement dated 24.07.2016 which was recorded after a delay of about (23) days from the date of lodging of FIR. He next submits that they were also found innocent during the investigation; however, they have been arrayed as accused in this case upon the orders of learned Magistrate who declined to accept the report under section 173, Cr.P.C. furnished by the police and has taken cognizance of the case. As far as further statement of the complainant is concerned, he admitted that it has got no sanctity in the eye of law. He has also pointed out that widow of deceased Muhammad Hayat namely Mst. Shamshad has filed Criminal Miscellaneous Application before this Court for seeking direction for registration of second FIR against PWs Lal Bux and 2 others and has also submitted that present applicants are not the real culprits in the case of causing murder of her husband Muhammad Hayat. In view of this factual position learned D.P.G. has extended his no objection for grant of application(s) and confirmation of interim bail granted earlier to the applicants.
9. Conversely, Mr. Nisar Ahmed Bhumbhro, learned counsel for complainant Muhammad Yakoob, while opposing the bail applications, submits that police report is not binding upon the Court, besides the complainant had nominated the applicants in his further statement and the case is at the verge of evidence, therefore he prayed for dismissal of applications; however, he could not controvert the submissions advanced by learned DPG for the State, so also the fact that further statement has got no evidentiary value in the eye of law.
10. Admittedly, the applicants are not nominated in the FIR. besides their names surfaced for the first time through further statement of the complainant which too was recorded after a delay of about 23 days. It is settled law that any statement or further statement of the first informant recorded during the investigation by police would neither be equated with first information report nor read as part of it and the involvement of additional accused in such statement was a fake improvement which makes the basis for false implication of the accused. In this connection reference may be made to a judgment passed by Honorable Supreme Court of Pakistan in the case of Falaksher v. The State reported in 1995 SCMR 1350. The said dictum was again followed and recognized by the Apex Court in its subsequent decision given in the case of Khalid Javed v. The State reported in 2003 SCMR 1419 wherein it was further observed that such a witness would be unreliable. Yet in another case reported as Yasir Ali v. State (PLD 2017 Lahore 737) it was held by Honourable Lahore High Court that when no reason has been given in the supplementary statement for not straightaway nominating the accused in the FIR, such supplementary statement recorded at belated stage has no legal value and as such in the said case conviction and sentence recorded against the accused was set aside. Reference in this respect can also be made to the case of Abid Ali alias Ali v. State reported in 2011 SCMR 161. In view of this legal position, further statement of the complainant wherein he disclosed the name of present applicants as accused with the allegation to have participated in the commission of the alleged offence, has no sanctity in the eye of law and such statement is liable to be discarded from consideration.
11. Moreover, the complainant has not alleged any misuse of the concession of bail on the part of present applicants. It may also be noted that the applicants have been enjoying liberal life on the basis of interim pre-arrest bail granted to them by this Court right from 06.10.2016 and 25.10.2016 without misusing it, therefore they should not be put behind the Bars by recalling their interim pre-arrest bail order. In this regard, reference can be made to the case of Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others reported in 2005 SCMR 1539. In the case of Abdul Haleem Lakho (supra) the complainant had sought cancellation of bail granted to the accused in that case however, Honorable Supreme Court of Pakistan while declining leave to appeal against the impugned order had laid the following dictum in Para 08 of the Judgment:
8 ."It may further be pointed out that the respondents during the last more than two years having enjoyed the concession of bail without misusing it should not be put behind the Bars by recalling the bail order at this stage".
12. The applicants are not nominated in the FIR, further statement of the complainant is delayed by 23 days, they were found innocent during investigation. besides the widow of deceased has filed her affidavit along with application for seeking direction for lodging second FIR against the PWs of the case wherein she has also exonerated present applicants from the commission of the alleged offense. Such being the position, it makes the case of prosecution of two versions and the controversy so created/occasioned by the police/prosecution is to be thrashed out by the trial court after recording evidence, however at this stage the applicants cannot be deprived of their concession of granting pre-arrest hail in view of the well settled principle of law that at bail stage no deeper appreciation of the facts is permissible and only a tentative assessment is to be made.
13. In view of above, I am of the view that arrest of the applicants is motivated and tainted with malice and the stand taken by them that they have been implicated falsely by the complainant with mala fide intention and for ulterior motives, carries due weight. The applicants have categorically stated and satisfied the conditions specified in subsection (2) to Section 497, Cr.P.C. Besides, sufficient grounds warranting further inquiry into their guilt have also been made out. Hence the basic ingredients for grant of pre-arrest bail as laid down by Honorable Supreme Court of Pakistan in the cases of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82), Meeran Bux v. The State (PLD 1989 SC 347) and Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) do exist in the instant case.
14. As far as investigation of this case is concerned, it seems that prosecution itself has dented its own case. Such behavior and conduct on the part of police in discharging their legal duties casts serious doubt on the veracity of prosecution evidence. At any rate, the above factors create reasonable suspicion which entitles the accused to the concession of pre-arrest bail. Accordingly, their case is purely covered by and falls within the limits of subsection (2) to Section 497, Cr.P.C. thus requires further inquiry.
15. Consequently, the application(s) in hand are allowed. The interim pre-arrest bail orders dated 06.10.2016 and 25.10.2016 are hereby confirmed on the same terms and conditions. The applicants are, however, directed to continue to put their appearance before trial Court regularly. Office to make compliance of the order.
16. However, before parting with this order, it may be observed that the observations made in this order are of tentative nature and the trial Court shall not be influenced by such observations while trying with the main case.
Pre-arrest bail applications stand allowed.
MQ/S-49/Sindh Bail confirmed.