RAHMAT HUSSAIN JAFFERI, J.~ Brief facts giving rise to the present application are that on 15.5.2004 at 3.03 a.m. The complainant Abdul Fatah and two injured persons, namely, Habibullah and Nazar Muhammad went to Police Station, Karampur, where the complainant informed the police that some criminals were trying to take away his cattle. On their resistance, the said criminals fired at the injured Habibullah and Nazar Muhammad who received injuries, therefore, letter might be given to him for taking the injured to the hospital. He would come later-on and lodge the report. Such entry was made in the station diary. The complainant took both the injured to the hospital situated in Karampur. After two days, on 17.5.2004 at 2.15 p.m. The complainant again went to the Police Station and lodged the F.I.R, bearing Crime No. 37 of 2004, stating therein that he, injured Habibullah (who died subsequently), PWs Nazar Muhammad and Abdul Malik were sleeping in the house situated in village Amir Ali Bijarani. They woke-up on the barking of dogs. On torch lights, they saw present applicants armed with Kalashnikovs, co-accused Khadim Hussain and Zaheer' Hussain and three unknown persons armed with guns taking, away the cattle of the complainant. The complainant and Habibullah came and grappled with the applicant Noor Din whereas PW Nazar Muhammad grappled with the applicant Muhammad Shahban. The applicant Noor Din fired from his Kalashnikov at the deceased Habibullah whereas the applicant Shahban caused Kalashnikov injury to Nazar Muhammad. After receiving the injuries both the injured fell down on the ground and then the culprits leaving the cattle at the place of incident ran away.
2. The applicants and co-accused were arrested on 17.5.2004. The co-accused Khadim Hussain and Zaheer Hussain moved bail applications before this Court and the Trial Court. They were granted bail by the said Courts. The applicants moved bail application before the Trial Court but the same was dismissed. Hence the present application.
3. The learned Advocate for the applicants has stated that the police recorded the station diary about the incident of this case at 3.05 a.m. On the statement of complainant in which he did not name any of the culprits but admitted that some criminals had caused injuries to the injured; that the complainant lodged the F.I.R, after two days of the said entry after consultation and involved the present applicants in the crime; that they did not produce the cattle and torches before the police; that the police recorded the statements of injured Nazar Muhammad and P.W. Abdul Malik on 20.5.4004 after the delay of three days of the lodging of F.I.R, without any explanation; that the delay in recording the statements of the witnesses adversely affected the prosecution case; that the applicant Noor Din was admitted in Dow Medical College & Civil Hospital, Karachi on 6.5.2004 and discharged on 15.5.2004 whereas applicant Muhammad Shahban was admitted in Dow Medical College & Civil Hospital, Karachi on 9.5.2004 and discharged on 16.5.2004 as such the applicants were not available on the date, time and place of the offence and; that there is no recovery from the possession of the applicants. He has further stated that the offence, if any, would fall under Section 460, PPC under which, every accused is equally responsible for 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 officer 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 SCM R 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. Learned Advocate for the applicant has stated that he belongs to the said area and the Police Station and hospital are opposite to each other, separated by road. After admitting the injured in the hospital, the complainant should have gone to the Police Station for giving full details of the incident which could have been termed as further statement of the complainant. Reliance is placed on the case of Falak Sher v. State (1995 SCM R 1350). However, the complainant did not do so and kept silent for two days and on 17.5.2004 he again went to the Police Station and narrated the details of the incident which the police incorporated in 154, Cr.P.C, book. There is no offence irrespective of the fact whether he til had committed murder of anybody or not, but two accused persons Khadim Hussain and Zaheer Hussain have been granted bail by this Court and the Trial Court, therefore, the applicants are also entitled to the concession of bail on the rule of consistency.
4. The learned State counsel has stated that names of the applicants, are mentioned in the F.I.R, with specific role assigned to them. He has admitted the recording of station diary by the police on the date of incident at 3.05 a.m. In which the complainant disclosed that some criminals were taking away the cattle and on resistance the said criminals fired at the deceased Habibullah and Nazar Muhammad; that the said N.C. Available in the police papers, which does not disclose the names of the applicants. He has tried to explain that the said N.C. Was registered for the purpose of giving letter to the complainant so that the injured might be admitted in the hospital for examination and treatment; that the F.I.R, has been lodged on 17.5.2004 in which the entire facts of the case have been mentioned; that the deceased Habibullah had died after about ten days of the incident in the hospital; that the police had secured ten empties of 7.62 bore and six empty cartridges from the place of incident which was inspected on the date of incident, therefore, he has strongly opposed to the grant of bail.
5. I have given due consideration to the arguments, gone through the material available on record and examined the same in the-light of submissions made by the counsel. From the broad facts of the case it is an admitted position that the incident took place on 15.5.20Q4 at 1.30 a.m., and just after 1-1/2 hour of the incident the complainant reached the Police Station along with both the injured persons and narrated the 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, PW 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 of PW 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.
6. The applicants have taken the plea of alibi by showing that they were admitted in the hospital on the date and time of the incident and in that connection they have produced the medical certificates issued by the Department of Medicines Unit No. IV, Dow Medical College & Civil Hospital, Karachi in support of plea of the applicant Noor Din and certificate of Department of Surgery, Surgical Unit No. VI, Dow Medical College & Hospital, Karachi in support of plea of the applicant Muhammad Shahban. These certificates show that the applicant Noor Din was admitted in the Hospital on 6.5.2004 and discharged on 15.5.2004 as a patient of Acute Viral Hepatitis whereas certificate of Muhammad Shahban reveals that he was admitted on 19.5.2004 and discharged on 16.5.2004 as a case of Appendicular Lump. The applicants have not filed any affidavit of doctors in support of said pleas. However, these pleas can be considered at the time of trial of the case where the applicants would be able to prove such pleas. If these pleas are considered in the light of the facts and circumstances mentioned above then it appears that the reasonable doubt has been created with regard to the involvement of the present applicants. Reliance is placed on PLD 1998 S.C.
98. It is well-settled that a benefit of doubt can be extended to the accused persons even at the bail stage.
7. Above are the reasons of my short order dated 1.2.2005 by which I had granted bail to e^ch o(the applicant in the sum of Rs. 5 lacs on furnishings Solvent surety with P.R. Bond in the like amount to the satisfaction of Trial Court and the application was allowed.