' SHAHID ANWAR BAJWA, J.--- F.I.R No,60 of 2006 was registered at Police Station Risala on 21-4- 2006. It was stated in the F.I.R by complainant that his brother had expired and at about 2315 hours on 20-4-2006. Whie they were sitting in mourning, present applicant along with his two sons came in a vehicle in an intoxicated condition and asked the complainant party to vacate street so that their vehicle could pass. It was stated that the complainant informed the applicant and his cohorts of reason of their sitting there. Upon which applicant and his son went away and after some time applicant, his wife and his sons came all armed with pistols and Chhuris. They opened fire. Chhuri wounds were inflicted upon some persons and as a consequence thereof one Ramesh was hit on right side of his abdomen and another one also named Ramesh was hit on back left side. Accused are stated to have fled away and injured were taken to hospital. One Kanti Lal expired due to his injuries while both the Rameshes remained under treatment. Accused were arrested on 5-5-2006, challan was filed on 3-6-2006 and trial is underway. Bail application was rejected by the trial Court.
Although this order passed on 1-9-2009 learned A.P.-G. Was unable to state as to what, if any, has been further progress in the trial. The operative part of order dated 1-9-2009 is as under:--- "I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and also gone through the material available on record. Admittedly the first bail application of the present accused was dismissed on merits and as well as on the ground of hardship by the then Presiding Officer of this Court vide order dated 8-8-2008. As many as seven P.Ws. Have been examined in this case and they have fully supported the prosecution case and implicated the present applicant/accused with specific role in commission of the offence. The case-law cited by the learned counsel for the applicant/accused is distinguishable to the facts and circumstances of the present case. The trial is in progress at right pace therefore no ground is available to the present applicant/accused for grant of bail, resultantly I find that the applicant/accused has not made out case for bail and his bail application is dismissed and disposed of accordingly."
2. Learned counsel for the applicant made following submissions:---
(i) No specific role has been assigned to the accused in F.I.R, and even in the statements recorded under section 161, Cr.P.C.
(ii) In the trial P.W-1 and P.W-2 improved their statements. P.W-1 stated that present applicant caused Chhuri blows to both the Rameshes. One of the Ramesh also stated that accused gave him Chhuri blows. Third witness also stated that accused and his son caused Chhuri blows to Ramesh.
No one stated that accused caused Chhuri blows to Kanti Lal, deceased. Thus, accused improved their statements in their examinations-in-chief.
(iii) All the Mashirs of recovery belong to Hindu community whereas house of appellant from where recovery is said to have been made is in area where only people of Christian community reside and nobody from neighbourhood was taken as Mashir.
(iv) Accused was arrested on 5-5-2006, recovery is stated to have "occurred on 12-5-2006.
Learned counsel for applicant submits that nobody in his right mind, after murdering some one, keep Chhuri in his house safely tucked away waiting to be recovered.
(v) Recovery of Chhuri was made on 12-5-2006 and it was sent to chemical examiner on 20-5- 2006. She relied upon Sajid Hussain v. The State 1986 M LD 2831, Muhammad Ali v. The State 2008 PCr.LJ 87, Haq Nawaz v. The State 1988 PCr.LJ, 1640, Muhammad Tasneem v. The State 1985 SCM R 160, Nazra v. The State 1980 PCr.LJ 264 and Sultan Khan v. The State 1983 PCr.LJ 1513.
3. Learned Assistant Prosecutof General opposed the bail and states that trial is at an advance stage and in such circumstances bail should not be allowed. He relied upon unreported case of this Court Salman Raza Khan v. The State (Criminal Bail Application No,702 of 2009).
4. I have considered submissions of the learned counsel for applicant-and learned A.P.-G. I have also gone through the record of this case as well as cage-law cited by the learned counsel.
5. In Sajid Hussain's case recovery of dagger was effected after 22 days of occurrence of murder and more than a week after arrest of accused. Recovery memo. Was attested by close relations of complainant without associating available independent witnesses. In such circumstances, High.
Court held that it cannot be said that prosecution had been successful in bringing home guilt to accused. Conviction of sentence for one year was set aside in Muhammad Ali's case Single Bench of this Court in a case where accused was arrested 17 days after occurrence and police had recovered weapon of offence and blood stained clothes from the house of accused. High Court while staying away from deeper appreciation and appraisal of evidence did not believe that after committing murder of deceased accused would keep with him evidence for such long time In this case weapon recovered was pistol. If High Court did not believe recovery of a pistol stated to be stashed away in house of culprits, it would be far more difficult to believe stashing away of Chhuri.
In Haq Nawaz's case accused was arrested five days after occurrence. High Court observed that accused had an ample time to do away with Toka. In Muhammad Tasneem's case crime weapon was Chhuri and dagger. It was recovered five days after accused was arrested. Witnesses of recovery were close relatives of deceased. High Court did not believe that conviction could be based on such evidence. In Nazra's case it was held that where recovery was doubtful it would need independent corroborative piece of evidence. In Sultan Khan' case it was held that where witness in his deposition introduced anything which was not contained in statements under section 161, Cr.P.C. Such material part of deposition cannot be relied upon by the prosecution as it would be violative of principles of natural justice.
6. On the other hand in Salman Raza Khan's case relied upon by learned A.P.-G., the allegation against applicant was that he committed murder of his wife by way of firing and pistol allegedly used in the commission of offence was recovered from applicant/accused. Material witness had been examined by trial Court and formal witnesses were yet to be examined by. Trial Court. In this view of position bail application was rejected.
7. In this case a number of witnesses cited in Challan is 16 and it is stated that only 7 witnesses have so far been examined, therefore, case of Salman Raza Khan does not help learned A.P.-G. On the other hand, recovery of Chhuri that too after ,7 days of arrest and then it was sent to chemical examiner after further 8 days. It is stated that alleged recovery was made in presence of interested witnesses there being no independent witness. All these create doubt. In F.I.R. It is not alleged that applicant caused Chhuri blow to Kanti Lal or to any other particular person. Even in statements under section 161, Cr.P.C. No direct role has been alleged against the present applicant. It is true that witnesses have tried to improve their statements when they came in witness box. Such improvisation would certainly create doubt at least at the bail stage and it B is settled law that benefit of doubt even at the bail stage must be given to accused.
8. I, therefore, allow this bail application. Applicant is admitted to bail in the sum of, (since he belongs to minority community), Rs,100,000 with P.R. Bond and one surety in the like amount to the satisfaction of the trial Court.