' SHAHID ANWAR BAJWA, J.--- F.I.R. No,199 of 2009 was recorded at Police Station Sohrab Goth on 25-3-2009 at 1810 hours for an offence alleged to have been committed on the same day at 1430 hours. The complainant was Muhammad Aslam Solangi. He stated that Abid Aziz Ashrafi, applicant No,1 is owner of Al-Awais Builders and Developers and the complainant was his Project Manager. He stated that at the project site an office has been constructed and security contract had been given to a security company. He further stated that some time ago there was a dispute between project builder and Ehsan Society and there was litigation between the parties. He stated that on 25-3- 2009 at 1430 hours while he was sitting in office and security guard Muhammad Sajid (deceased) was on duty on the roof of office in a Morcha made by blocks a group of 50/60 persons led by Umer Ehsan, which group was alleged to be associated with a political organization and was duly armed with weapons, came at the office and started firing at the office. Security Guard Muhammad Sajid received bullet injuries and died on the spot. Complainant stated that he and others ran away and saved their lives. He informed the owner Abid Aziz Ashrafi, applicant No,1 and thereafter lodged F.I.R. Against Abdul Majid and Masood Ahmed.
2. Second F.I.R. Bearing No,201/2009 was recorded at Police Station Sohrab Goth at 2015 hours for incident to have taken place at 1815 hours. Complainant was A.S.-I. Bashir Khoso of P.P. Ahsanabad.
He stated that he was conducting proceedings under section 174, Cr.P.C. In respect of deceased Muhammad Sajid in F.I.R./199 of 2009 which F.I.R. Had already been registered when the complainant informed him that the accused persons were still present at the scene of offence.
Complainant stated that he called his mobile and reached at the spot along with a number of police constables. Upon reaching the spot complainant stated that he found 50/60 armed persons who interfered with police proceedings and started firing upon police party with intention to kill. He stated that two bullets hit police mobile and, in self-defence, firing was responded by police party and also fired tear gas shells were lobbed. Consequently, accused persons dispersed leaving behind arms, motorcycles and a tractor. Details of arms recovered, motorcycles recovered, tractor and 277 empties of different bores were stated in the F.I.R. F.I.R. Was registered for an offence under sections 353/324/34, P.P.C.
3. On 30-3-2009 letter was written by one Muhammad Aslam Solangi to the Hon'ble Chief Justice of Pakistan, in which letter it was alleged that police after registration of F.I.R. No,201-2009 came to the office of complainant Umer Abul Hassan and took away licensed weapons and motorcycles of Security Guard.
4. Third F.I.R. Was registered being F.I.R. No, 705 of 2009 at the same police station on 12-10-2009 in respect of death of Muhammad Sajid on 25-3-2009. Complainant was Syed Abdul Majid Shah, brother of deceased Muhammad Sajid. It was stated by A.S.-I. That he received a letter by post and this letter was base for registration of F.I.R. It was stated by the complainant Syed Abdul Majid Shah that he along with his brother Masood Shah lived in District Muzaffar Garh and their Brother was performing his security guard duties at the builder's site office of the present applicant. It was stated that on 25-3-2009 at 2-00 p.m. Muhammad Sajid was murdered. It was further stated that the complainant and his brother Muhammad Saud and brother-in-law Ubidullah came to Karachi on 30-3-2009 and met applicant No,
1. At that time applicant No,2 as well as two other persons were also present there. The complainant stated that on his inquiry applicants Nos.1 and 2 informed that their brother had been murdered by their business rival and names of complainant and his brother had been shown as eye-witnesses to make case strong and they had to go police station for the purpose of recording their statements. Complainant refused because they were not present in Karachi and were present at Muzaffar Garh in the eventful day. Complainant stated that upon this applicant No,1 and Muhammad Aslam Solangi became furious and threatened to kill the complainant. It was further stated that on 2-4-2009 the complainant and his brother were called at the office and on repeated insistence applicants Nos.1 and 2 admitted that actually they had killed their brother and since they were guilty they were prepared to pay Qisas. Complainant stated that they were further threatened and the complainant stated that they were forced to take amount and went back to Punjab. In August, 2009 brother of applicant No,1 came to uncle of the complainant in Muazaffar Garh, tendered apologies and conveyed message of applicant No,1 that he is ready to pay money on account of Qisas but the uncle refused. Complainant got orders for registration of F.I.R. From Court. He consequently complained that the present applicant be tried for murder of Muhammad Sajid.
5. Since it is alleged by the complainant in the complaint that F.I.R. Was registered through an order of the Court I may refer to application under section 22-A Cr.P.C. Filed in the Court of District and Sessions Judge, Malir. On this application on 28-4-2009 the following order was passed:--- "The report was called from investigation wing of Police Station Sohrab Goth. SIP Anil Ahmed Khushk, Investigating Officer of the above crime appeared and submitted report, wherein pointed out to have recorded statement of present applicant and Masood Ahmed on 16-4-2009, basis whereupon he has released the accused nominated in F.I.R. No,199 of 2009, under section 169, Cr.P.C. Whereas introduced the names of Aslam, Abdul Aziz, Karam Ali and Ashiq as the culprits of the above crime. The said accused are the same persons, who are shown proposed accused in the instant application. He further stated that investigation is going on and he will submit proper charge sheet before the competent Court of law on completion of the investigation. Thus, the very purpose for recording the second F.I.R. By the applicant is going to be served through the investigation in Crime No,199 of 2009, hence the present application is disposed off."
6. Challan has been submitted and applicants Nos.3 and 4 have not been sent up for trial and have been let off by police. No application for joining them under section 193, Cr.P.C. Has been filed. In view of this application Mr. Yawar Farooqui, stated that he would not press bail application in respect of applicants Nos.3 and 4. Bail application in respect of Applications Nos.3 and 4 stand dismissed. Their bail bonds are cancelled and sureties are discharged.
7. Mr. Yawar Faruqui, made the following submissions:---
(1) The complainant in F.I.R. No,705 of 2009 has himself stated that on 2-4-2009 applicant No,1 and others called them in their office and admitted that they had actually murdered deceased and yet they remained quiet for a period of 7 months. This indicates their mala fide intention because they want to blackmail the applicants. Learned counsel submitted that there is 7 months delay in lodging of F.I.R. And in this regard he relied upon Haji Naseem Gul v. The State 2007 PCr.LJ 602 to contend that if there is an unexplained delay in lodging of the F.I.R. Doubt is thrown on through entire case of the complainant.
(2) Learned counsel referred to the contract with the security company and submitted that Supervisor of the Security Company has been granted bail by the trial Court vide order dated 14- 12-2009. Principle of consistency demands that bail be allowed to the present applicants also.
(3) There are three F.I.Rs,: first F.I.R is by the present applicant No,2; then there is an F.I.R. By police.
Police F.I.R. Supports, in material terms, version of the present applicant and that both the F.I.Rs, state that there were 50/60 persons present duly armed: firing is alleged and huge quantity of empties stated to have been recovered from the site.
(4) There is no evidence whatsoever to connect the present applicants Nos.1 and 2 with the offence and present applicants are innocent but brothers of the deceased have become greedy and in their greed they are trying to drag the present applicant through torture of litigation.
(5) Learned counsel relied upon Rais Wazir Ahmed v. The State 2004 SCM R 1167 to contend that even if no bail application has been filed in the trial Court, the High Court has jurisdiction to entertain bail application and grant bail. Learned counsel next relied upon for the same proposition on Abdul Rasheed v. The State PLD 2003 Kar.
682.
(6) Learned counsel relied upon Meeran Bux v. The State PLD 1989 SC 347, where the Supreme Court has held that if arrest would lead to humiliation and harassment of a person, pre-arrest bail can be and should be entertained by the Court.
8. Although interim bail granted to the present applicant on 13-10-2009 there has not been any allegation of misuse of bail facility.
9. In respect of delay in lodging of the F.I.R., learned counsel also relied upon Abida and others v.
The State 2007 M LD 1303 and Tahir Mehmood and others v. The State 2007 PCr.LJ 112. Learned counsel relied upon Manzoor and 4 others v. The State PLD 1972 SC 81, to contend that bail is not to be withheld from an accused as a punishment and that it is not correct to depend on ipsi dixit of the police regarding guilt or innocence of the persons even in the matters while deciding questions of law.
10. Learned counsel relied upon Sadiq Masih v. S.H.O. And others, 1994 PCr.LJ 295 and contended that the complainant had the option of lodging a private complaint and it was not available to him in presence of two F.I.Rs, to go for a third one. He submitted that it smacks of mala fides on the part of the complainant and police authorities that although the learned Sessions Judge had not ordered recording of second F.I.R. And observed that since statement of complainant has been recorded in the F.I.R. No,199 of 2009 no second F.I.R. Was called for in the case yet third F.I.R. Has been recorded. The complainant specifically stated in the F.I.R. That he was lodging F.I.R. On the direction of the Sessions Judge and the police proceeded to register the second F.I.R. Relying upon Mahboob Ali and another v. The State 2007 PCr.LJ 1631, learned counsel submitted that even in the F.I.R. Fresh lodged by the complainant names of the two witnesses which it is being claimed now had seen the murder were not stated. Learned counsel submitted that the applicants are innocent and have been falsely implicated. He further submitted that prosecution case is riddled with doubts and benefit of doubt even at the bail stage must be given to the accused persons.
11. Learned A.P.-G. Opposed grant of bail. Investigating Officer was present in Court he asked the Investigating Officer to read the report in respect of place of incident. This report was drawn on the same day. Report in material terms states that there was a Morcha at the roof. Report further states that in the Morcha there were no blood-stains. Report further states that some blood-stains were found close to the boundary wall of the premises in question. Learned A.P.-G. Further submitted that it is alleged by the present applicant in F.I.R. No,199 of 2009 that mob of 50/60 persons fired at the office premises. It is also stated in F.I.R. No,209 of 2009 by the police that there was exchange of firing between the same mob and police party and as many as 277 empties were recovered but no bullet marks have been found on the perimeter wall or on any other part of the premises. He submitted that story as being pressed into service by the applicants is, prima facie, a patently false story designed to lead the prosecution to astray. Mr. Dur Muhammad Shah, Advocate for the complainant also made his submissions. He submitted that it is stated in the F.I.R. Lodged by the present applicants that incident had been seen by Abdul Majid and Masood Ahmed who are brothers of Muhammad Sajid who had been killed by Abdul Majid or Masood, if they had been in Karachi on the day of incident, it would have been but natural for them to receive body of their brother, to identify it and to carry it to ancestral place. They were not in Karachi on that day, rather they were in Muzaffar Garh and therefore the statement in the F.I.R. By the present applicant that Abdul Majid and Masood Ahmed were present at the scene of occurrence is a patently false statement. In case of F.I.R. Lodged by the police report under section 173, Cr.P.C. Has been submitted and it has been recommended that F.I.R. Be disposed of in 'A' class. Statement of two witnesses Ghulam Shabbir and Abdul Shakoor were recorded by police on 28-10-2009. In their statement two witnesses have categorically stated that on the day of incident at about 2-30 p.m. They were present in the office of Al-Awais Builders when there were reports of firing. Applicant No,1 called the deceased and asked him to find as to from where report of fire was coming. The witness further stated that applicant No,1 had a Kalashnikov in his hand and applicant No,1 as well as Ashiq and Ikram had pistols in their hands. As soon as Muhammad Sajid opened the door to see applicants Nos.1 and 2 fired with their arms and the deceased died there and then. Learned counsel submitted that two witnesses have clearly implicated the present applicant and therefore there is strong connection prima facie establishing that the present applicants Nos.1 and 2 had committed the murder. When pointed out that there appears to be some inconsistency in the nature of injuries, learned counsel submitted that at the bail stage Court is required to make tentative assessment and it is not permissible to enter into deeper appreciation of the evidence at bail stage. He further submitted that co-accused Ashiq has obtained bail on the basis of a misstatement.
12. Learned counsel went on to submit that appellants Nos.1 and 2 did not join investigation because they have been granted bail by this Court. Upon this Investigating Officer present in Court stated that statement of Abid Ashrafi has been recorded and Aslam in spite of his being told that challan has been filed in the Court has not cooperated with the investigation.
13. While exercising his right of reply Mr. Yawar Faruqui, submitted that all along the complainant as well as the two witnesses whose statements were recorded on 28-10-2009 have not uttered a single word whatsoever regarding the motive for the crime. The record is silent absolutely in this connection so far. The complainant although F.I.R. On his complaint was recorded 7 months after the incident has not said a single word about two witnesses. Although witnesses have stated that after the incident they had promised the applicant that they would not tell anyone about the incident the applicant put them in a car and dropped them in Suzuki Highroof on a highway.
Thereafter after 7 months it dawned upon them to discuss the facts alleged by them with the family of the deceased. He further stated that although the witnesses have stated that they went to village in Punjab and met brother of deceased yet the brother when he came and when he went to register F.I.R. No, 705 of 2009 did not say a single word about these two witnesses.
14. I have considered the submissions made by the learned counsel and have also gone through the case-law cited at the bar. Since neither A.P.-G. Nor Advocate for the complainant have taken the ground that this Court cannot entertain a bail application without the same having been filed in the Court below, this particular aspect argued by Mr. Yawar Faruqui need not be decided. In any case, Rais Wazir Ahmed's case (supra) is final authority on this point.
15. Mr. Yawar Faruqui's main emphasis has been on three points: firstly delay in lodging of the F.I.R.
Incident occurred on 25-3-2009 and F.I.R. Was lodged in October; secondly, absence of motive; it is no one's case so far as to what has been the motive for the applicants Nos.1 and 2 to resort to murder of security guard and thirdly there are two witnesses upon whom structure of the prosecution's case is sought to be based and they have not been named in the F.I.R. Which was recorded after 7 months of the occurrence. While still on the contention of Mr. Yawar Faruqui, I may also mention that there appeared to be some inconsistency in the medical evidence and in the ocular testimony. In statement of the two witnesses it is stated that as he appeared out of the gate the accused persons fired at him and he fell there. Map of the place of incident indicates that dead body of the deceased was found at a place 9 feet away from the main gate and near the boundary wall. Mr. Faruqui's contention that if he was appearing at the gate and .The present applicant fired how could his dead body travel back 9 feets, particularly when no allegation of dragging is made, no mark of dragging is pointed out and the blood-stains are reported on the wall rather than on the gate.
16. On the other hand, complainant and the prosecution case primarily rests upon two things firstly when Masood and Majid were not at Karachi why they were named as the witnesses in the F.I.R.
Lodged by the present applicant. This becomes all the more clear when dead body was neither identified nor handed over to the brothers alleged to be present in Karachi but was handed over to a third person and secondly in the F.I.R. By the police as well as F.I.R. By the present applicant it is alleged that 50/60 persons fired and as many as 277 empties were recovered yet no pock mark is found on any of the walls.
17. Prima facie it appears that the story that the present applicants have tried to build may not be the real story but is not the duty of the applicants to prove any story. It is the duty of the prosecution to prove its case and prosecution cannot lay foundations of its case on any weakness in the story sought to be put forward by the accused person. In fact under the law to put forward even a contradictory version in defence does not, ipso facto, lead to presumption of guilt.
Therefore, it is for the prosecution to have a consistent story. The case put forward by the prosecution does create certain doubts such as how did dead body moved 9 feet, nature of injuries, absence of any statement regarding motive, delay of 7 months in lodging F.I.R., two witnesses upon whom the prosecution case is based having not been named in the F.I.R.
Registered at the behest of the brother of the deceased. It is settled law that benefit of any doubt even at the bail stage must be given to the accused.
18. For the above reasons, bail application in respect of applicants Nos.1 and 2 is allowed and the interim bail already granted is confirmed on the same terms.
19. Needless to observe that the trial Court shall not be, in any manner, whatsoever, influenced by any of the observations made above.