1. ' MUHAMMAD TASNIM, J.---Through this bail application the applicant has called in question the validity of impugned order dated 19-3-2010 passed in Cr.B.A. No.146 of 2010 by the learned 1st Additional Sessions Judge, Sukkur as the applicant has been booked in F.I.R. Crime No.1 of 2010 police station registered for offence under sections 302, 395, 114, 440, 148 and 149, P.P.C.
2. ' Prosecution story is that the case was initiated on an F.I.R. Lodged at the instance of complainant Ashiq Hussain on 18-1-2010 at 1600 hours alleging therein that he saw the present applicant along with deceased Imtiaz Channa and Gul Muhammad alias Riaz Shah on a motorcycle of deceased Imtiaz Channa going from Numaish to Site area. The complainant party followed them. They (accused) turned from Ahmed Ghee Mills to Protection Band and when they reached near Pir Musafir, three unknown persons came from Katcha side at Protection Band where they stopped the motor-cycle and alighted from it, to whom present applicant. Amjad Awan told that kill him (Imtiaz Hussain Channa) and at his (applicant) instance, all the three accused including accused Gul Muhammad alias Riaz Shah took out pistols from their folders and fired at Imtiaz Hussain, which hit him and he died on the spot; hence the F.I.R. Was lodged as stated above.
3. ' The learned counsel for the applicant ably argued the present bail application and has submitted that there was delay in lodging of F.I.R. For four days which was not properly explained by the prosecution. He has further argued that after having deliberation and consultation between the relatives of the deceased, the present applicant has been falsely implicated and a false F.I.R.
4. Against the present applicant has been lodged. He has further argued that the applicant was not said to be present at the place of wardat and no recovery was made from the applicant. He has further argued that no role whatsoever has been assigned to the present applicant except the instigation. He has further argued that as per prosecution witnesses the persons who have murdered the deceased in this case were unknown persons. He has further submitted that statement of witnesses were recorded by the police on 19-1-2010 after five days of the incident and one day after the lodging of the F.I.R. Though all the witnesses are family members of the deceased. In support of his aforesaid submissions, he has relied upon Nooruddin and another v.
5. The State (1995 M LD 1267), Usman v. The State (1994 SCM R 2161), Amanat Ali v. The State (1993 SCM R 1992), Rustam alias Hoto v. The State (2004 PCr.LJ 1753), Syed Amanullah Shah v. The State and another (PLD 1996 SC 241) Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) and Farhat Azeem v. Waheed Rasul and others (PLD 2000 SC 18).
6. ' ' In addition to above, the learned counsel for the applicant has taken the plea of alibi by arguing that the present applicant is employee of National Bank of Pakistan and at the relevant time, he was not present at the place of wardat but he was working at his duty place. However no material to support the above submission has been placed on record. This argument of the learned counsel cannot be taken note of at this stage. However, it will be for the trial Court to take notice of this aspect of the matter when evidence of the prosecution witnesses is recorded.
7. ' On the other hand the learned A.P.G. Has vehemently opposed the bail application. However he is unable to explain the delay of four days in lodging of the F.I.R. And that the prosecution has also failed to bring on record any material, which connects the present applicant with the commission of alleged offence. He further argued that as per prosecution at the instigation of the present applicant an innocent person has been killed but no material to support the above contention could be placed by the learned A.P.G.
8. ' The learned counsel for the complainant while adopting the same arguments of the learned A.P.G., has vehemently opposed the bail application.
9. ' I have heard the arguments of the learned counsel for the applicant, learned counsel for the complainant and learned A.P.G. Appearing for the State and have gone through the material placed on record so also the case-law cited at the bar.
10. To support his contention the learned counsel for the applicant submitted that there was delay of four days in lodging of the F.I.R., reliance was placed upon the case of Nooruddin and others v. The State (1995 M LD SC 1267) wherein the learned single Judge of this Court now (Judge of honourable Supreme Court of Pakistan) while dealing with the point of delay in lodging of the F.I.R. Was observed as under: - "There is no 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.
11. ' Admittedly, P.W. 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 P.W. 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."
12. ' In the reported case on the ground amongst others the learned Judge took note of the delay in lodging of the F.I.R. Accused was admitted to bail on the ground of delay in lodging F.I.R.
13. ' Taking up the submissions of learned counsel for the applicant that the name of the present applicant was not disclosed by the relatives of the deceased while making first hand report to the police whereafter police reached at the wardat and further action was taken by the police including the registration of F.I.R. And investigation. The learned counsel for the applicant has argued that since name of the present applicant was not disclosed in the A first hand report to the police it is a fit case in which applicant be enlarged on bail as there appears to be doubt and it becomes a case of further enquiry.
14. ' To support the aforesaid submissions, the learned counsel has placed reliance on the aforesaid judgment. While dealing with the aforesaid issue, the learned Judge has held as under:-- "From the broad facts of the case it is an admitted position that the incident took place on 15-5- 2004 at 1-30 a.m. And just after 1 1/2 hours of the incident the complainant reached the Police Station along with both the injured and narrated 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.
15. 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 is situated."
16. Now taking-up the arguments of the learned counsel that only allegation levelled against the present applicant was that he instigated unknown persons to make firing upon the deceased, the learned counsel has argued that it has been consistent view of the superior Courts that where there is no other evidence connecting the applicant with the commission of alleged offence available and no other role to the accused has been assigned normally, the accused are being admitted to bail.
17. ' To support the aforesaid contentions, the learned counsel has relied upon the case of Muhammad Haroon (supra), wherein the Honourable Supreme Court of Pakistan while dealing with the issue as observed as under:- "The only allegation against Usman petitioner is that he raised Lalkara along with co-accused Luqman and Muhammad Yakoob while Abdul Rehman petitioner is alleged to have held Mst.Razia Bibi along with co-accused Muhammad Yakoob. They are not alleged to have caused any injury to any of the deceased persons. We, therefore, convert their petitions into appeals and allowing the same direct that they shall be released on bail subject to their furnishing security in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of AC/Duty Magistrate, Chiniot."
18. ' To support the aforesaid contentions, the learned counsel has relied upon the case of Nazir Ahmed (supra) wherein while admitting accused to bail, the honourable Supreme Court has held as under:- "We have heard the learned counsel and examined the record. According to the averments made in the F.I.R., only a Lalkara has been attributed to the petitioner. We convert this petition into appeal and consider it a fit case for grant of bail. He is enlarged on bail provided he furnishes a bail bond in the sum of Rs.25,000/- with two sureties each in the like amount to the satisfaction of A.C., Nankana Saheb, District Sheikhupura . "
19. In the end, the learned counsel further submitted that there is reasonable doubt in the case and it is a fit case in which benefit of doubt be extended to the present applicant and he be enlarged on bail. These contentions of the learned counsel are fully supported by cases of Tariq Bashir and Syed Amanullah Shah (supra).
20. ' In view of the aforesaid facts and circumstances of the case, this application was allowed by me by a short order dated 20-7-2010 whereby the applicant was admitted to bail. These are the reasons for the said short order.