'ATTAULLAH KHAN, J.---Petitioners, namely, Ibrahim Khan and Karamtullah sons of Haji Saeedullah, seek their release on bail after refusal of the same relief by the learned lower Courts.
2. The petitioners are charged vide F.I.R. No,327 dated 27-10-2009 under sections 302/109/120/34, P.
P . C . Of Ghazi Khel District Lakki Marwat.
3. Arguments heard and record perused.
4. Learned counsel for the petitioners argued that in the F.I.R. Nobody has been charged. He further contended that after two weeks of registration of F.I.R, statement of one Noor Ghazali was recorded under section 161, Cr.P.C. In which he charged both the petitioners. According to him it is not known as how he came to know about the names of accused.
5. On the other hand, learned counsel for the respondent argued that there is strong circumstantial evidence against the accused in the shape of recovery, etc. And also the trial has started, therefore, the petitioners are not entitled to the concession of bail.
6. The brief facts of the case are that the report was lodged by one Muhammad Afzal complainant, in which he disclosed that at about 21-30 hours he heard some noise from the house of his deceased brother and when he reached to that house in which his sister in law, namely, Shasta Bibi and niece, Kaslsoom Bibi were residing, he found both of them as murdered. He was told by Kiramatullah about the report of firing but according to him saw no body. In the report he did not charge any body. This report was made on 26-10-2009.
7. Subsequently the police recorded the statement of one Noor Ghazali on 9-11-2009. After a long narration he disclosed that on 28-10-2009 he read in newspaper about the murder of Shasta Bibi and her daughter. Thereafter the P.W. Informed his father about the incident and on second day i.e, 29-10-2009 he went to Tajazai where he was informed by his friend that the murders have been committed by Kiramatullah and Ibrahim accused/petitioners on instigation of Muhammad Afzal and Hayatullah. The Third accused Muhammad Afzal is the lodger of F.I.R.
8. Perusal of the above statement would reveal that firstly it was recorded some two weeks after the lodging of report and second fact emerged is that no source of information has been disclosed in the statement as to who informed him about the assailants. A legal preposition arises as to whether a delayed statement recorded under section 161, Cr.P.C. Can substitute an F.I.R. The answer is certainly in negative because there is no provision to give preference to a statement recorded by the police under section 161, Cr.P.C. Over the F.I.R. Which is lodged under section 154, Cr.P.C. If the F.I.R. And the statement recorded under section 161, Cr.P.C. Is placed in juxtaposition it would become clear that the prosecution has taken totally different view. Initially no body was ' charged in the F.I.R. But later on after two weeks of the occurrence, some four persons including the petitioners were named as assailants. It is by now a settled principle that the statement recorded by police can neither equated with the F.I.R. Nor it can be taken into consideration unless strong reasons are shown. In this way, the value of the subsequent statement becomes doubtful. Another fact emerged from the subsequent nomination of the accused for the murder in the statement of Noor Ghazali, it may likely to give rise to second version, i.e, to nominate the accused for the murder and this fact may introduce a possibility of deliberation for false implication. It is also pointed out that in the statement of Noor Ghazali, the lodger of F.I.R. Has been attributed a role which has adversely affected the credibility of the complainant. It would be a second version. Moreover, the subsequent statement of Noor Ghazali may amount to filing the lacunas in the prosecution case unless some strong evidence is available which can be looked into, at the trial stage.
9. In the F.I.R. Nobody has been charged. After two weeks of the report, the present accused/petitioners were nominated by the P.W. But he has not disclosed the source of information. The two weeks time spent creates doubt and points out possibility of deliberation for false implication. According to the statement of Noor Ghazali, he got knowledge of assailants on 29-10-2009 but his statement was recorded on 9-11-2009 thus he spent 12 days in disclosing the alleged accused with no explanation even this delay makes the statement unreliable, at present.
There is no ocular evidence. No recovery has been made from the accused/petitioners to connect them with the commission of offence. The role of complainant Muhammad Afzal has also become doubtful when he was contradicted by Noor Ghazali. Muhammad Afzal complainant, in his supplementary statement recorded on 27-10-2009 has again confirmed the contents of F.I.R.
10. All the above facts, make the case of the accused/petitioners as that of further inquiry, therefore, their petition is accepted and the accused/petitioners are admitted to bail subject to furnishing bail bond in the sum of Rs,2,00,000 (two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/ Duty Magistrate, Lakki Marwat. The contents of this order shall not affect the merit of case.