ABDULLAH KHAN and anothers vs THE STATE

ORDER

' The applicants have sought bail in a case of Qatl-e-Amd punishable under section 302/34, P.P.C.

According to F.I.R. Dr. Shamim Ahmed, M.L.O. Of Civil Hospital informed the police on 29-8-2000 that dead body of Abdul Ghafoor, Khan reportedly killed by some unknown persons, was received by him and on such information S.I.P. Abdul Aziz Khan of Police Station Jackson, Karachi rushed to hospital where he was informed that the deceased was shot dead by fire-arm. The said S.I.P.

During his enquiry took the view that deceased had been killed because of old enmity. Later on statements of two witnesses namely Javed Khan and Ali Khan were recorded under sections 161 and 164, Cr.P.C. It transpired from their statements that they were sleeping near the deceased when the applicants and absconding accused Tariq came over there, out of whom Tariq fired from his pistol which hit Abdul Ghafoor and then the assailants ran away. Due to fear, both these witnesses went to their native place and later on they returned and made statements.

2. Learned counsel for applicant submitted that the statements under section 161, Cr.P.C. Were recorded after seven days and again two days thereafter the statements were recorded under section 164, Cr.P.C. According to him this was an unwitnessed incident and the statements of these witnesses are not believable. He further submitted that even otherwise the applicants were empty- handed and the fatal shot is not attributed to them therefore, their constructiye liability requires further enquiry. He urged that the motive set up by the prosecution is not enough as the deceased who had allegedly killed one Saifullah son of applicant Abdullah in the year 1993 had paid up compensation of Rs,3,00,000 whereupon the matter stood settled, therefore, the enmity ceased to exist. In support of his contentions he relied on Muhammad Din v. State 1994 PCr.LJ 1081, Muhammad Mehmood v. State 1995 PCr.LJ 1342, Asadullah v. State 1999 SCM R 1034 and Farzand Ali v. Taj 2000 SCM R 1854.

3. Mr. Behram Khan Ujjan learned State Counsel strongly opposed the bail plea and submitted that mere payment of compensation was not enough; the enmity did exist which was motive for commission of the offence. According to him the incident was witnessed by two eye-witnesses but since they were not family members of the deceased they ran away to their native village. He emphasized that the presence of applicants alongwith co-accused Tariq at the time of occurrence was enough to establish their active participation. He contended that both the applicants and co- accused Tariq belong to police and they had taken the law in their hands.

4. Mr. Umer Farooq Khan, appearing on behalf of the complainant adopted the above arguments and submitted that the authorities cited by the learned counsel for applicants are not applicable to the instant case and that the presence of applicants would show their intention to commit murder and at this stage it is quite premature to dilate upon the merits of the case more particularly when the main culprit Tariq is still at large.

5. I have considered these contentions carefully. In Muhammad Din's case bail was granted on the ground that the applicants were accused of proverbial Lalkara. In Muhammad Fayyaz's case bail was allowed on the ground that the eye-witnesses were not named in the F.I.R. And were examined by the police after eight days and no other evidence was available against the accused. In Assadullah's case the matter had reached the Honourable Supreme Court by way of appeal and on appraisal of evidence it was found that the motive was not believable. In Farzand's case cancellation of bail was declined, inter alia, on the ground that the accused persons had only Sotis with them and did not cause injuries to the deceased but only simple were caused to the victim.

6. It is true that in the instant case the statements under section 161, Cr.P.C. Have been recorded quite late but an explanation has been offered therein and as rightly pointed out by Mr. Umer Farooq Khan that such explanation cannot be rejected outright at this stage. As regards the active participation of the applicants their presence in the company of co-accused Tariq at the time of incident which took place in the odd hours of night coupled with the previous enmity arising out of murder of son of Abdullah are the factors that distinguish their case from those stated in the cited case. I agree with learned State Counsel that the manner in which the applicants accompanied the main culprit at such time of the night furnishes the prima facie evidence connecting the applicants with the crime and such material cannot be discarded at this stage. The abovementioned authorities, therefore. Do not help the applicants.

7. The bail plea is premature. Let the evidence of at least the eye-witnesses come on record for which the trial Court is directed to take proceedings expeditiously. The application is dismissed.