ORDER MUHAMMAD TASNIM-J.---This bail application is directed against the order passed by learned I-Additional Sessions Judge Ghotki dated 26-4-2010 in Session Case No. 59 of 2010.
2. The case as set out in the F.I.R. Is as under:-- "Complaint is that Saindad was my real brother. On 6-1-2010, I along with my brother Saindad, my uncle Manjhee and cousin Ali Hassan left our village and set out for Ghotki. I and my brother Saindad were ahead on a Motorcycle being driven by my brother Saindad and some distance behind us my uncle Manjhee and cousin Ali Hassan were coming in their motorcycle. When we reached on link road of Jan Muhammad Society near Chadki Bridge it was 7-00 a.m. We saw seven armed persons on the road those were identified by us to be Mukhtar Ahmed. (2) Amanat both sons of Meeran by caste Chachar originally resident of Meeran-Darro at present resident of Kacho area Gemero. (3) Akber alias Beedo son of Sawan Chachar resident of village Darrago armed with Kilashankoves. (4) Abdul Hameed son of Abdul Majeed Chachar resident of Darraga armed with lathi. (5) Ghulam Nabi son of Qadir Bux Chachasr,
6. Haji Muhammad son of Sain Dino Chachar both resident of village Passau armed with guns and (7) Barbal alias Chibhir son of Sohnaro Chachar resident of village Darago armed with rocket launcher. They made us to stop our motorcycles and due to fear of weapons we stopped. The accused told us to disembark from motorcycle and hand over the motorcycle to them on which I and my brother resisted and meanwhile my uncle Manjhee and cousin Ali Hassan also reached over there they were threatened by the accused that they should not come near to them other were they will be caused loss. They stopped there due to fear of weapons and they too identified the accused. On our resistance accused Mukhtar made fire from his Kilshankove at my brother Saindad which hit him at his back.
Accused Amanat fired a shot from his Kilashankov at my brother which hit him at his right arm and on front of shoulder. Accused Akbar alias Beedo Chachar fired from his Kilashankove on the middle of right arm of my brother. My brother cried and fell down and was bleeding. Accused Abdul Hameed caused lathi injuries at my left shoulder and waist I cried and fell down. Accused forcibly took out educational testimonials from pocket and robbed our motorcycle.
The accused armed with gun and rocket launcher made indiscriminate firing for creating terror.
Two accused drove away our motorcycle and the rest ran away towards fordst. I and above witnesses saw my brother and found him dead. Then we gave information to police and with their help took the dead body of my brother to the hospital Ghotki. After the post mortem and completing funeral ceremony and getting free from the relatives now I have come for report that the above mentioned accused have robbed our motorcycle and due to our resistance killed my brother and caused me injuries they have also robbed educational certificates. And to create terror have made indiscriminate firing. Pray action."
3. Learned counsel for the applicant has argued that incident took place on 6-1-2010 at 7-00 a.m.
Whereas F.I.R. Was lodged on 7-1-2010 at about 1600 hours with delay of 33 hours which has not been explained by the prosecution. She has further argued that statement of the witnesses under section 161, Cr.P.C. Were recorded with two days delay and there is no plausible explanation to that as well. She has argued that though report to the police by the complainant was made immediately and such fact finds place in the station diary maintained by the police but name of the accused persons were not disclosed in such station diary. Learned counsel says that subsequently after delay of one day the complainant has cooked up the story against the applicant and has lodged a false F.I.R. She further says that allegation in the F.I.R. Are belied by the medical evidence.
She further developed the arguments by saying that in the F.I.R. It has been alleged that injury was caused by lathi on the left arm whereas the provisional medical certificate says that injury was caused to the injured on the right arm. Learned counsel for the applicant has argued that present applicant was arrested on 21-1-2010 and lathi from him was recovered after three days of his arrest i.e. 24-1-2010.
4. Learned counsel for the applicant in support of delay in lodging of F.I.R. Has relied upon the case of Nooruddin and another v. The State 2005 M LD 1267 "A" and unreported Order in Criminal Bail Application No. S-230 of 2010 Order dated 20-7-2010 Amjad Ameen v. The State.
5. In support of her contention that though present applicant has not caused any injury to the deceased. As per F.I.R. He has caused injury to the complainant but such allegation is belied by the medical evidence; hence she says that applicant is entitled to the concession of bail.
In support of her contention learned counsel relied upon the case of:- Passand and 3 others v. The State 2003 PCr.LJ 747
(ii) Attaullah and 3 others v. The State and another 1999 SCM R 1320 (i.e) Muhammad Akbar and 4 others v. The State and another 1978 SCM R 7.
(iv) Khadim Hussain v The State and another 1978 SCMR 147 "B"
(v) Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125 In support of her contention -that ocular evidence is contradictory to medical evidence she has relied upon the case of Zulfiqar v. The State 2002 PCr.LJ 791.
7. In support of her contention though the recovery was affected from the applicant after delay of about 15 days of incident having no blood stain on it: hence the injury allegedly caused by the lathi of the applicant is doubtful. In support of her above contention, she has relied upon the case of:--
(i) Mehar and another v. The State 2000 PCr.LJ 1178
(ii) Muhammad Ali v. The State 2008 PCr.LJ 87 "C"
In the end learned counsel says that this is a fit case where provisions of section 497(2), Cr.P.C. Be invoked as it is a case of further inquiry and to support her above contention she has relied the cases of:--
(i) Tariq Bashir and 5 others v. The State PLD 1995 SC 34 "F & G"
(ii) Syed Amanullah Shah v. The State PLD 1996 SC 241 "C".
8. As against the above learned A.P.-G. Has vehemently opposed the grant of bail on the ground that the present applicant is charged under section 396, P.P.C. And the penalty provided under the law is death. He further says that in the daily diary maintained by the police referred to by the learned counsel for the applicant contains the fact that complainant had informed the police that dacoity had taken place. Learned A.P.-G. Attempted to justify the delay in lodging of the F.I.R. But could not successfully satisfy the Court.
9. I have heard the learned counsel for the parties and have gone through the record as also case law, cited by the learned counsel for the applicant.
10. From perusal of the record, it is clear that name of the applicant does not find mention in the daily diary which was written at the complaint of the present complainant. Such a point where name of the accused does not find mentioned in the daily diary but subsequently included in the F.I.R. Was dealt with by one very eminent learned Judged of this Court ("Now Judge of the Hon'ble Supreme Court of Pakistan"). In the case of Nooruddin supra 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.
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 station is situated."
11. With regard to delay in lodging an F.I.R., the learned Judge in the same judgment has 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. 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 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."
Above judgment cited by the learned counsel for the applicant fully support the case of present applicant on both the above points.
12. It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into but only the record is to be seen with a view to find out as to whether the 'applicant/accused is prima facie connected with the commission of offence or not. From examination of the record, it is apparent that allegation in F.I.R. With regard to present applicant are not in line with the medical evidence available on record: hence benefit if any is to be extended to the present applicant.
13. With regard to the contention of the learned A.P.-G. That since there is allegation in the F.I.R. That all the accused persons have assembled with a view to commit robbery and such act falls within the ambit of section 396, P.P.C. Providing the penalty of death but it is yet to be decided whether the present applicant was available at the scene or not and such question can only be determined once the evidence of the prosecution is recorded. So at this stage no finding to this effect can be made.
14. Additionally the prosecution has failed to discharge the burden of explaining the delay in lodging the F.I.R. And so also in recording the statement of witnesses under section 161, Cr.P.C.
15. In the circumstances I feel that this is a fit case which requires further inquiry.
Accordingly I admit the applicant/accused on bail subject to furnishing of his solvent surety in the sum of Rs.2,00,000 (Rupees.