' ABDUL RASHEED KALWAR, J.---By this order, I am going to dispose of the bail application filed by the applicants/accused under section 497, Cr.P.C. Who are booked in Crime No.47 of 2006 under sections 17(4) and 17(2) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 337- F(i), 337(ii), P.P.C. Registered at Police Station, Naushahro Feroze.
2. The complainant Ghulam Hyder son of Bagh Ali Taggar had reported the matter at Police Station, at 0300 hours on 5-3-2006. Inter alia, he stated that, he was Chowkidar on a petrol pump of one Anweruddin, situated at National Highway near N/F Line. On 5-3-2006 at about 1.15 a.m. Anwerudin, his Tractor Driver Awais and the complainant left the Petrol Pump and proceeded on Motorcycle. At about 1-30 a.m., when they reached on the Saleh Taggar culvert on Mithiani Road, they saw five armed persons with open faces on Motorcycle light. One of them had kalashnikov in this hand, two had guns, one was holding pistol and another was holding torch. These armed persons forcibly stopped the complainant party and tried to snatch the motorcycle from them. The complainant party resisted and raised cries; whereupon the person holding kalashnikov, directly fired upon Anweruddin, which hit him on chest and other parts of the body. Anweruddin cried and fell down.
The person holding pistol directly fired upon the driver Awais, which hit him on the right leg who also fell down. Muhammad Bux Taggar and Misri Khan Taggar were attracted on the cries of complainant party; as they were coming from Naushahro Feroze; behind them, on another motorcycle. The culprits on seeing them, left motorcycle and ran away towards north, along with their weapons. Anweruddin had succumbed to injuries and died. The culprits were seen by the complainant and P.Ws. And they claim to identify them, if they were brought before them. Dead- body of Anweruddin and injured Awais were brought to Civil Hospital, Naushahro Feroze for post- mortem examination and treatment whereform the complainant went to Police Station and lodged the F.I.R.
3. On 5-3-2006 at 0500 hours S.I.O. Police Station, Naushahro Feroze visited the place of incident.
Police collected blood-stained earth and found four empties of kalashnikov and two empties of pistol of .30 bore from the place of vardhat and secured them under mashirnama in presence of mashirs. P.W. Muhammad Awais son of Ghulam Mustafa Chandio, Muhammad Panjal son of Ghulam Muhammad Taggar and Misri Khan son of Ghulam Muhammad Taggar were examined by the Police under section 161, Cr.P.C. On 20-5-2006 who disclosed the names of absconding accused Dilsher and the present applicants/accused with their specific roles and type of weapons used by them in commission of offence. The present applicants/accused were arrested on 29-5- 2006 at. 1500 hours by the Police. During investigation, the applicants/accused were produced in identification parade and were picked up by the witnesses. On 9-6-2006 at about 1345 to 1350 hours both the applicants/ accused led police to recovery of crime weapons and as such pistol and gun were recovered on the pointation of the applicants/accused Nos.1 and 2 respectively by the police. Resultantly police registered Crime No.94 of 2006 and 95 of 2006 at Police Station, Naushahro Feroze against the applicants/accused under section 13(e) Arms Ordinance. On 6-6- 2006 P.W. Ghulam Muhammad Taggar and P.W. Misri Khan Taggar were examined under section 164, Cr.P.C. Before 3rd. Civil Judge and. Judicial Magistrate, Naushahro Feroze, wherein they had implicated the applicants/accused. The applicants/accused were present before the Magistrate at that time and they were offered an opportunity of cross-examination to P, Ws. But they declined to cross-examine the witnesses. On 7-6-2006 P.Ws. Muhammad Suleman son of Ali Hassan Taggar, Gul Muhammad son of Sain Bux Taggar were examined under section 161, Cr.P.C. Who also implicated the applicants/accused. On 10-6-2006 the further statement of complainant was also recorded who disclosed the names of present applicants/accused with their role. From statement recorded during investigation it was revealed that absconding accused Dilsher had used kalashnikov and killed Anweruddin, applicant No.1 had used pistol and caused injury to P.W. Awais and applicant No.2 was holding gun.
4. First bail application was filed by the applicants/accused before the Court of learned Additional Sessions Judge, Naushahro Feroze which was dismissed on merit by the Court on 19-8-2006. The applicants/ accused approached this Court and filed Criminal Bail Applicant No.S-521 of 2006 but the learned counsel for the applicants/accused withdrew the said bail application and order was passed that after making some arguments, learned counsel for the applicants does not press the application as affidavit of injured witness Muhammad Awais and Certificate of Councillors were not filed before the trial Court and he wants to repeat the bail application before trial Court on these fresh grounds, therefore, this Court granted prayer of the applicants/accused counsel and allowed the bail application to be withdrawn vide order, dated 26-7-2007.
5. On 31-7-2007 P.W. Muhammad Awais filed affidavit before Additional Sessions Judge, Naushahro Feroze in Sessions Case No. 177 of 2006, whereby he exonerated the applicants/accused. Thereafter on 28-8-2007 fresh bail application was filed by the applicants/accused before the trial Court with the previous grounds and additional ground of affidavit and Certificate of Councillor and such bail application was also dismissed by the trial Court vide order, dated 31-8-2007 In case of Ali Muhammad v. The State reported in PLD 2002
6. Learned counsel for the applicants/accused has raised the following contentions:--
(i) F.I.R. Does not disclose the names of the applicants/accused.
(ii) Further statement of the complainant disclosing the names of the applicants/accused was recorded after about 2-1/2 months and further statement cannot be equated with the F.I.R.
(iii) Statements under section 161, Cr.P.C. Of the P.Ws. Have been recorded with the delay of 2-1/2 months.
(iv) Statements under section 164, Cr.P.C. Of some P.Ws. Was recorded after about 3 months and in said 164, Cr.P.C. Statements, no descriptions of the applicants/accused were given.
(v) Identification parade was not properly held.
(vi) Injured P.W. Muhammad Awais has filed affidavit in the trial Court and exonerated the applicants/accused, therefore, the case is fit for grant of bail by extending the benefit of doubt at bail stage and also the case is one of further enquiry.
7. The learned counsel has relied upon 1999 SCMR 1377, PLD 2002 (Karachi) 402, PLD 2002 (Karachi)
125, 1996 PCr.LJ 1315, 1979 SCMR 137, PLD 1972 (SC) 277. The relevant portion of the authorities are reproduced as under.
8. In case of Mir Nazar Malik v. The State reported in (1996 SCMR 1377), the Hon'ble Supreme Court has observed as under:--- Mr. Abdul Fateh Malik, learned counsel for the petitioner, has inter alia argued that the name of the petitioner did not originally transpire in the F.I.R. But it was only subsequently that the petitioner was involved in the commission of the said crime. In support of its second version, the prosecution has relied upon extra-judicial confession allegedly given by the petitioner to P.Ws. Abdul Rauf and Taj Muhammad but according to the learned counsel it cannot be relied upon alone as a strong piece of evidence to connect the petitioner with the crime. Therefore, according to the learned counsel, the case requires further inquiry and the learned Judge in the High Court was in error while dismissing the bail application filed by the petitioner
9. In case of Ali Muhammad v. The State reported in PLD 2002(Karachi) 126 relevant Page 130, wherein the High Court of Sindh has observed as under:-- ' Upon the above discussion, I am satisfied that in view of the affidavits filed by the complainant and the prosecution eyewitnesses as well as Mashir or recovery of crime weapon and empties resiling from their previous various statements and exonerating the applicants/ accused a reasonable doubt has been created with regard to the guilt of the applicants/accused and the case requires further enquiry for connecting the accused with the above offence. This can only be done after a proper enquiry and determination as to which of the two versions supplied by the complainant and the prosecution witnesses is more reliable and trustworthy. At present there are no reasonable grounds to believe the applicants/accused to be guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive them of the benefit of the bail in view of the embargo contained under section 497, Cr.P.C....
10. In case of Shahzado v. The State reported in PLD 2002 (Karachi) 403 at relevant page 404 and 405, the High Court of Sindh was pleased to observe as follows:-- ....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 SCMR 550) but as observed in Falak Sher v. State 1995 SCMR 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 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 enquiry....
11. In case of Mushtaque Ali Kalhoro v. The State reported in 1996 PCr.LJ 1315 wherein the High Court of Sindh has observed as follows:-- ....It is also important to note that the witnesses when put to identification test should have pointed out and attributed the role of each accused, while committing the crime....
12. In case of Allah Bakhsh v. Nazar Hussain Shah and another, reported in 1979 SCMR 137, the cancellation of bail was refused by the Hon'ble Supreme Court with the following observations, the relevant portion is at pages 138 and 139:--- ....We are afraid there is no force in either of these contentions. The two affidavits filed by the alleged eye-witnesses exculpating the respondent herein from the commission of the crime where there on the record of the case forming the necessary material which had to be considered by the learned Judge in reaching the conclusion whether the respondent could be said to have been connected with the offence. This is indeed what the learned Judge in the High Court has done to which no exception can be taken. We therefore, respectfully agree with his conclusion that this was a case for further inquiry under section 497(2), Cr.P.C. And consequently it was not a case in which bail could be refused to the respondents....
13. In case of Amir v. The State reported in PLD 1972 Supreme Court 277, the Hon'ble Supreme Court had been pleased to hold as under:-- ...There is no mention in the order of the learned Single Judge that he has also examined the statements made by witnesses other than P.W. Manzur. We have, therefore, directed the learned counsel for the petitioner to renew the petitioners application for bail before the learned Single Judge, who will consider the whole case for purposes of bail on the date that is available. It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused.
' With these remarks, we dismiss this petition....
14. Learned Asst. A.-G. Has strongly opposed the grant of bail, saying that it is a brutal murder and applicants/accused have been picked up in the identification parade. The witnesses have fully implicated the applicants/accused with their specific role. The delay in recording the statements of the witnesses is no ground for grant of bail. The bloodstained earth and empties of fire-arm have been recovered from the place of incident. The applicants/accused have confessed the commission of offence before police and on their pointation crime weapons were recovered by the police. Prima facie the case against the applicants/ accused is made out and neither applicants/accused are entitled for grant of bail on the basis of benefit of doubt, nor case of further enquiry is made out. He has relied upon Supreme Court authority reported in PLD 1997 SC 347.
' No enmity and motive for false implication against the complainant has been attributed by the applicants/accused.
15. Learned A.A.-G. Has cited following authority.
16. This is a case of Nazir Ahmed v. The State reported in (PLD 1997 Supreme Court 347 relevant pages 350 and 351), the Hon'ble Supreme Court has held as under:- ...A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eyewitnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits....
17. I have heard the arguments carefully, examined the contentions raised by the parties counsel in the light of case-law cited by them. I have profound respect and regard for the dictum laid down in the case-law cited by learned applicant's counsel. However, each case is to be decided in the light of its own peculiar circumstances. Similarly, in the present case, despite all infirmities pointed out by the applicants counsel and case-law cited by him in support of his bail plea, following aspects of the prosecution case and sufficient material on record are available to connect the applicants/accused with commission of the offence tentatively:--
(i) The recovery of crime weapon was made in consequences of information received from applicants/accused.
(ii) Incident is established by recovery of blood-stained earth and empties of pistol and kalashnikov, death of one person and suffering of injuries by the P.W.
(iii) There is no enmity between applicants/accused and complainant party and as such, there is no reason to falsely implicate the applicants/accused.
(iv) Applicants/accused have been fully implicated by some of the P. Ws. In their statements under section 164, Cr.P.C. Having been recorded in presence of the applicants/accused. The applicants/accused did not cross-examine them though opportunity was given to them.
(v) The affidavit filed by one P.W. Cannot be considered, in view of dictum laid down by Hon'ble Supreme Court in case of Nazir Ahmed v. The State (Supra).
(vi) The legal presumption of genuineness cannot be attached to the certificate issued by Councillor which is subject to strict proof of its contents.
(vii) It is rare phenomenon to substitute real culprit with innocent person without any motive.
(viii) Deeper appreciation of evidence is not permissible at bail stage.
(ix) Applicants have been picked up in identification parade by P. Ws.
(x) Complicity of applicants in commission of offence is established on record.
18. For the above reasons, I am unable to hold that there are no reasonable grounds to believe that the applicants/accused are not guilty of a non-bailable offence. Under the circumstances applicants are not entitled to the concession of bail. Hence bail application stands dismissed.