1. ' SYED ZAWWAR HUSSAIN JAFERY, J.---The applicant Nazir Ahmed is facing trial in Sessions Case No,10 of 2005 pending in the Court of 1st Additional Sessions Judge, Khairpur in Crime No,77 of 2004 in an offence under sections 302, 109, 34, P.P.C. Registered at Police Station Pir Jo Goth.
2. ' The bail plea on behalf of the applicant/accused was filed in the trial Court but the same was dismissed vide Order dated 29-3-2005 by the learned 1st Additional Sessions Judge, Khairpur. The applicant being aggrieved with the said order has preferred this Bail Application before this Court for seeking bail.
3. ' The applicant was arrested in this case on 21-12-2004 along with co-accused namely Zaheer Ahmed, Mehboob Ali and Ghulam Haider to face the trial for killing the deceased Dodo Khan, the father of the complainant Zulfiqar Ali.
4. ' The facts as enumerated in the F.I.R. Are that the aforesaid F.I.R. Was registered through complainant Zulfiqar Ali on 10-11-2004 stating, therein that the deceased Dodo Khan aged about 75 years on 9-11-2004 after offering Taraveh prayer went to his land to lookafter the paddy crop but he did not return back for long time, therefore, the complainant and his younger brother Asadullah and maternal nephew Niaz Hussain after taking torches went to find him. At 11-00 hours at night when they reached near the banana's garden of Haji Faiz Muhammad Suhaq, they heard cries of murder murder from the garden of banana and they rushed towards there and where they saw four persons with hatchets were running on the track of banana's garden towards northern side to whom they have seen well on the source of torches and will identify them if seen again. The complainant party made Hakals but the culprits succeeded to escape away from the place of incident. The complainant party saw that the deceased Dodo Khan was lying on the earth having sharp-hatched injuries on his head and neck. The blood was oozing from the injuries and he succumbed to death in their presence. The complainant party made cries and many villagers arrived at the place of incident and then they traced the footprints but the footprints disappeared at Road towards Khairpur via Ahmedpur. The complainant by leaving the witnesses over the dead body of his father Dodo Khan. At the place of incident proceeded to lodge the F.I.R. It is also disclosed in the F.I.R. That four unidentified persons due to unknown enmity with common intention have killed the deceased Dodo Khan by giving him hatchet blows. The F.I.R. Of the complainant was lodged on 10-11-2004.
5. ' As per prosecution case, further statements of the complainant P.Ws. Asadullah, Niaz Hussain were recorded on 29-11-2004 who involved the applicant and other co-accused regarding the killing of the deceased Dodo Khan. After recording of the F.I.R. No, 161, Cr.P.C. Statements of the above-named witnesses were recorded but the statements of P.W. Asadullah and Niaz Hussain who happens to be the brother and nephew of the complainant Zulfiqar Ali were recorded under section 161, Cr.P.C. On 29-11-2004. The prosecution also recorded the statements of P.Ws. Ashique Ali and Mir Muhammad on 29-11-2004 regarding the conspiracy for killing of the deceased Dodo Khan.
6. The co-accused Zaheer Ahmed, Mehboob Ali and Ghulam Haider were arrested on 21-12-2004, during the investigation hatchets duly blood-stained were recovered from them. After due investigation of the case, the charge-sheet was filed in the Court having jurisdiction. The bail application was filed but the same was dismissed hence this application.
7. ' Mr. S. Mushtaque Hussain Shah, learned counsel for the applicant has contended that the name of the applicant/accused does not transpire in the F.I.R. And further statement of complainant Zulfiqar Ali and P.Ws. Were recorded on 29-11-2004 after delay of 20 days. The incident as alleged in the F.I.R.
8. Is unseen and there is no eye-witness regarding the infliction of the injuries to the deceased Dodo Khan but culprits were seen, were running away from the place of incident along with hatchets.
9. After arrest of the applicant, no identification test was held hence there is possibility of false implication of the applicant in the present crime and therefore, the case requires further inquiry as provided under section 497(2), Cr.P.C.
10. ' It is further urged by learned counsel for the applicant that there are general allegations in the further statements against the applicant/accused and no any specific role has been assigned for infliction of the injuries to deceased Dodo Khan. There is unexplained delay of 20 days in recording of further statement of the complainant and the statements of P.Ws. Under section 161, Cr.P.C. Was also recorded on 29-11-2004.
11. ' It is further pointed out by learned counsel for the applicant that as per post-mortem examination report the deceased Dodo Khan had sustained 3 injuries on his body but the recovery of the hatchet from the applicant/accused was not found stained with blood. The complainant and P.Ws.
12. In their further statements have not disclosed that the applicant was inflicting hatchet blows to the deceased Dodo Khan, therefore, actual part of the infliction of the hatchet blow is missing.
13. ' Mr. S. Mushtaque Hussain Shah, learned counsel for the applicant in support of his arguments has cited the case of Shahzado v. The State (PLD 2002 Kar. 402). Muhammad Riaz Munna v. The State (1993 SCM R 1321), Yaroo v. The State (2004 SCM R 864) and the case of Tahir Abbas v. The State (2003 SCM R 426).
14. ' Conversely Mr. Farman Ali Kanasiro, learned counsel for the complainant has vehemently opposed this application and submits that four persons had committed the murder of the deceased Dodo Khan. The complainant and the eye-witness namely Asadullah and Niaz Hussain saw four persons were running away from the place of incident along with the hatchets as they heard the cries of the deceased Dodo Khan but they could not identify the accused at the time of incident and F.I.R. Was lodged by the complainant as he was not in proper sense and could not identify the actual culprits for the commission for the offence, the complainant made further statement on 29-11-2004 wherein he had disclosed the involvement of the applicant and co- accused in commission of the offence. Deceased Dodo Khan had sustained 3 sharp cutting injuries on his body, which corroborate the version of the complainant as disclosed in the F.I.R. He concedes that no identification test was held after the arrest of the accused as the complainant and eye-witnesses specifically involved the accused in the commission of the alleged crime in their further statements. During the course of investigation, accused Zaheer Ahmed, Mehboob Ali and Ghulam Haider produced the bloodstained hatchets. The applicant/accused also produced hatchet but it was not found blood-stained. The applicant along with co-accused found unlawful assembly and facilitated the other co-accused for causing the hatchet injuries to deceased Dodo Khan. P.Ws. Ashique and Mir Muhammad have also supported the prosecution version regarding the conspiracy hatched by the applicant and co-accused in killing of" the deceased. The complainant gained his senses and made further statement regarding the commission of the offence committed by the applicant and co-accused.
15. ' Mr. Farman Ali Kanasiro, learned counsel for the complainant further submits that the trial Court has framed the charge against the applicant and co-accused on 10-4-2005 and the trial Court has issued process to the P.Ws. For the purpose of commencement of the trial, therefore, directions can be issued to the trial Court to proceed with the case expeditiously and conclude the trial as early as possible.
16. ' Mr. Habibur Rehman Shaikh, learned A.A.-G. Has supported the impugned order and states that the applicant was seen at the place of incident but the complainant could not identify the applicant and co-accused as he was in deep grief in respect of killing of his beloved father he disclosed the entire facts to the police at the time of recording of the further statement. The prosecution has recorded 164, Cr.P.C. Statements of the P.Ws. Ashique Ali, Asadullah, Niaz Hussain and Mir Muhammad and they have fully implicated the applicant and co-accusaed in their 161 and 164, Cr.P.C. Statements. Learned A.A.-G. Further argued that the applicant and co-accused have not engaged counsel therefore, the trial Court has issued the directions to the accused to engage their counsel so that the matter may proceed.
17. ' Mr. Farman Ali Kanasiro, learned counsel for the complainant has also filed the case diary w.e.f, 4- 10-2005 to 14-11-2005 which indicates that after recording the charge by the trial Court, process has been issued to the P.Ws. Therefore, he also opposed this application.
18. ' I have perused the papers and gone through the authorities cited at Bar. Admittedly the F.I.R. Of the incident was recorded on 10-11-2004 against four unknown culprits. In the F.I.R. No description of the accused persons was disclosed regarding their identity but it was stated that the accused will be identified if seen again. Admittedly accused Nazir Ahmed was arrested on 21-12-2004 he was not produced before the Magistrate for the purpose of identification test as the complainant made a further statement on 29-11-2004 and disclosed the name of the applicant along with other co- accused Zaheer Ahmed, Mehboob Ali and Ghulam Haider. The witnesses namely Asadullah and Niaz Hussain were also examined on 29-11-2004, as the witnesses were available at the place of incident along with complainant. It is obvious that after lodging of the F.I.R. The prosecution did not record the statements of the witnesses Asadullah and Niaz Hussain under section 161, Cr.P.C. Upto 28-11-2004 but on 29-11-2004 their statements were recorded and they also deposed against the applicant and co-accused regarding the killing of deceased Dodo Khan. As per further statement of the complainant and 161, Cr.P.C. Statements of the P.Ws, no part of infliction of hatchet blow is assigned to the applicant/accused though he was also seen at the place of incident along with co-accused running away along with hatchet. The witnesses intone of complainant has given the same statement regarding the identity of the culprits.
19. ' In case of Shahzado v. The State, my learned brother Mr. Wahid Bux Brohi, J, has highlighted the worth of further statement of the complainant in the above-mentioned case for the sake of convenience. The observation as mentioned in this authority is reproduced herein-below in extenso:-- 'As regards the intrinsic worth of further statement of complainant, it may be observed that there is no restriction to record the same (see Saeed Muhammad Shah v. State 1993 SCM R 550) but as observed in Falak Sher v. State 1995 SCM R 1350 it can neither be treated as F.I.R. Nor a part of it.
20. Indeed, the object of further statement is to enable the complainant to clarify the facts, which require some explanation, but then if complexion of the case is changed as regards identity of culprits then the onus would be on the prosecution to cast away the same at the trial. At least for the purpose of bail in such circumstances. Court would be persuaded to draw reasonable inference that the guilt of the person involved on the basis of further statement without rational explanation calls for further inquiry'.
21. ' In the case of Muhammad Riaz Munna v. The State the Honourable Apex Court while deciding the Criminal Petition No,7-K of 1993, decided on 16th March, 1993, has observed as under:-- 'Since F.I.R. Was lodged after the delay of nearly 20 days and as the alleged witnesses were not named in the F.I.R. And the police statements were recorded after 21 days from the date of incident in our view it is a fit case for grant of bail'.
22. ' In the case of Tahir Abbas v. The State the Honourable Apex Court while deciding the application has observed as under:-- ' The complainant however, subsequently on 17-4-2001 made a supplementary statement in which he involved the petitioners also. The petitioner is living in the same locality at a distance of about few yards and the parties were known to each other therefore, there was no explanation as to why if the petitioner Was involved, he was left out when the F.I.R. Was got registered as the ground of mistake about the identity of the petitioner prima facie is not available.'
23. Further statements of the complainant can be recorded as there is no restriction under the law but as observed in the case of Falak Sher v. The State (1995 SCM R 1350) it can neither be treated as F.I.R. Nor a part of it. Indeed, the object of further statement is to enable the complainant to clarify the facts, which requires some explanation, but then if complexion of the case is changed as regards identity of culprits then the onus would be on the prosecution.
24. ' Mr. S. Mushtaque Hussain Shah, learned counsel for the applicant/accused while reading the further statement of the complainant and statements of tke other witnesses urged that father of co-accused Zaheer Ahmed and brother of present applicant Nazeer Ahmed namely Jan Muhammad alias Janan Suhaq was killed by Munawar Suhaq and others who have been challaned in that case and the accused party was annoyed with Sikandar the brother of complainant. Admittedly the complainant and the eye-witnesses have not seen the killing of the deceased but the complainant and the witnesses had stated that they reached at the place of incident due to cries and saw four culprits duly armed with hatchets were running away from the place of incident. At least for the purpose of bail in such circumstances. Court would be persuaded to draw reasonable inference that the guilt of the persons involved on the basis of further statement without rational explanation calls for further inquiry. It is also manifested for the name of the applicant/accused and co-accused was disclosed after delay of 20 days in further statements made by the complainant and P.Ws. The complainant was supposed the source of information being an essential requirement to displace the apparent credibility to such statement, which is yet to come on record at the trial.
25. In view of the foregoing reasons, bail cannot be withheld as a punishment so that the applicant/accused may rope in jail for indefinite period.
26. Resultantly, I am of the view that as per grounds raised by learned counsel for the applicant/accused supported with the case-law a case of bail is made out and accordingly applicant Nazir Ahmed son of Qaisar Khan Suhaq be released on furnishing solvent surety in the sum of Rs,2,00,000(Rs, Two Lacs) and PR bond in the like amount to the satisfaction of the trial Court.
27. ' Criminal Bail Application No,219 of 2005 stands disposed.