MUHAMAMD JAVED and anothers vs THE STATE

1. ' MUKHTAR AHMED JUNEJO, J.---Leave to appeal is sought against an order dated 30-8-1994 passed by learned Acting Chief Justice of the Peshawar High Court declining bail to petitioner Muhammad Javed and Shamrez in the case arising out of F.I.R. No, 397/94 of Police Station, Gul Bahar, Peshawar.

2. ' Said case relates to the murder of Bakhmal on 16-5-1994 at about 4-30 p.m. Within the premises of Elementary Boys College, Gul Bahar, Peshawar. F.I.R. Of the case was lodged on the same day by Jehangir, brother of the deceased, who was Chowkidar in said College alongwith the deceased. In the F.I.R. Names of petitioners Muhammad Javed and Shamrez were mentioned but they were said to be present within the premises of the College alongwith the complainant, who came down from roof of the College after hearing noise. He named Maqbool, Said Shah and Gulzar to be running away from the place where dead body of the deceased was seen lying. Motive for offence given in the F.I.R. Was an enmity between complainant's uncle Muhammad Amin and Maqbool, Said Shah and Gulzar, mentioned as accused. The complainant mentioned in the F.I.R. His grievance against Maqbool, Said Shah and Gulzar for having murdered the deceased and for having caused injuries to petitioner Shamrez.

3. ' The tables were turned for the petitioners when on 19-5-1994 the complainant gave his statement before a Magistrate to the effect that on the day of incident he was on leave, when his brother was murdered inside the College. The complainant took a completely changed stand in his later statement dated 19-5-1994 where he alluded murder of Bakhmal to petitioner Muhammad Javed, Chowkidar in Agro-Technical College who was taking bath and to petitioner Shamrez who was washing his blood-stained clothes in a closed room and whom he had named in the F.I.R. As injured witness. In this way the complainant handed over to police the present petitioners.

4. ' Mr. Abdul Hamid Qureshi, learned counsel for the petitioners, argued that the version given by the complainant in his F.I.R. Was materially different from the one given by him in his subsequent statement on 19-5-1994, and that the present petitioners were not charged with murder of Bakhmal in the F.I.R. Where one of them (Shamrez) was shown to be victim of assault. The bloodstained Toka was said to have been recovered after five days.

5. ' Mr. Safirullah, learned counsel for the complainant, opposed the bail but conceded that names of different persons were given in the F.I.R. To be murderers of Bakhmal. The learned counsel explained that the complainant who lodged the F.I.R. Was not an eye-witness and he could not give correct names while lodging the F.I.R. For want of complete information. Unfortunately, none appeared from the State to assist.

6. We agree with the reasoning by the learned counsel for the petitioner, that the story given in 164, Cr.P.C. Statement by the complainant on 19-5-1994 is materially different from the facts given by him in the F.I.R. In his F.I.R. The complainant has tried to implicate three innocent persons for the murder of his brother, but in his statement dated 19-5-1994 he said that in his F.I.R. He has implicated three persons for the murder of his brother, because he had old enmity with them. There is no eye-witness in the case. P.Ws. Dilawar, Abdur Rehman, Nasim and Rab Nawaz had only seen the petitioners washing their clothes to remove blood stains. Said witnesses had been examined very late without an explanation for late examination.

7. ' For the foregoing reasons, we convert this petition into appeal and grant bail to the appellants in the sum of Rs,one lac each with one surety in the like amount to the satisfaction of the trial Court.