Abdul Hameed Dogar, CJ.--This petition is directed against order dated 05.09.2007 passed by learned Single Judge of Lahore High Court, Lahore whereby Crl.Misc. No, 8383-B of 2006 filed by petitioner was dismissed and he was declined concession of bail.
2. Briefly, stated facts of the case are that on 04.2.2006 complainant Muhammad Mushtaq lodged FIR No, 52/06 at Police Station Saddar, Kamoke stating therein that on the fateful day at about 1.15 p.m. he along with Nazir Ahmed and Mehar Din, PWs were present at their agricultural land situated in Tibba Muhammad Nagar picking peas while deceased Ghulam Mustafa was sitting near them reading newspaper when suddenly four unknown persons armed with deadly weapon emerged there on motorcycles. One of them remained on the motorcycle, while three persons came down from motorcycle and made straight fires at deceased which hit on different parts of his body. As a result of which he succumbed to the injuries at the spot. The complainant, later on, through supplementary statement recorded under Section 161 Cr.P.C. implicated petitioner and co-accused Ghulam Mustafa as culprits.
3. We have heard Sardar Muhammad Latif Khan Khosa, learned counsel for the petitioner and Ch. Munir Sadiq, learned DPG Punjab at length and have gone through the record and proceedings of the case in minute particulars.
4. It is contended by learned counsel for the petitioner that petitioner is innocent and has been falsely implicated in this case through a supplementary statement as he was not nominated in the FIR. According to him, he was declared innocent by three successive investigations. He further contended that no recovery of any sort has been affected from him. He submitted that statements of Nazir Ahmed and Mehar Din, PWs were recorded after a delay of 74 days which makes the case of petitioner doubtful and of further inquiry. He further contended that co-accused Ghulam Mustafa has also been allowed bail by this Court.
5. On the other hand learned DPG Punjab controverted above contentions and supported impugned order. He contended that in the present circumstances no case for bail is made out.
6. It is an admitted fact that the complainant did not mention the name of the petitioner and co- accused in the FIR but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the First Information Report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under Section 497 Cr.P.C. Moreover, since name of petitioner and co-accused were not mentioned in the FIR and was mentioned in the supplementary statement by complainant which facts also brings the case within the ambit of further inquiry. It was held by this Court in the case of Falak Sher alias Sheru v. The State (1995 SCM R 1350) that FIR is the document which is entered into book maintained at the Police Station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under Section 156 Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of it. Similarly it was held by this Court in the case of Khalid Javed & another v. The State (2003 SCM R 1419) that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with FIR nor read as part of the same and the value of the supplementary statement, therefore, will be determined keeping in view the principles enunciated by the superior Courts in this behalf.
7. Moreover, the statements of PWs were recorded after a delay of 74 days. The delay in recording their statements has not been explained and this would be an important factor which is likely to give rise to an inference that second version was introduced by the prosecution after deliberations and if it is so it will adversely affect the prosecution case. It was held by this Court in the case of Muhammad Rahim and others v. Bakht Muhammad and others (2006 SCM R 1217) that statement of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and their statements were not trustworthy as their statements created doubt in their veracity as the law laid down by this Court in the case of Syed Saeed Muhammad Shah & another v. The State (1993 SCM R 550).
8. In view of above, we of considered view that the case of petitioner requires further inquiry.
Moreover, since co-accused Ghulam Mustafa has been granted bail by this Court as such on the principle of rule of consistency petitioner is also entitled to concession of bail. Accordingly, petition is converted into appeal and is allowed. Appellant Noor Muhammad was admitted to ad-interim bail by this Court on 11.10.2007, which is confirmed, however, the amount of surety is enhanced from Rs, 10,000/- (rupees ten thousand) to Rs, 100,000 (Rupees one lac) with PR bond to the satisfaction of trial Court.
9. The above reasoning being tentative in nature shall have no bearing on the merit of the case.