1. ORDER MUHAMMAD TASNIM, J. --- Applicant Ghulam Murtaza has filed this application seeking post arrest bail, who is wanted in F.I.R. Crime No. 18 of 2010 Police Station, Abad District Sukkur registered for offence under sections 302, 342, 337-H(2), 34, P.P.C.
2. The prosecution story as set-up-in the F.I.R. Lodged by Complainant Azizullah on 9-2-2010 at 1130 hours is as under:-- "Complaint is that, I am government employee and deceased Muhammad Shuaib aged about 42 years was my younger brother and was businessman. Zulfiquar Ali Jatoi and others were residing in bungalow adjacent to ours. On 8-2-2010, I had gone on my duty and my brother had gone to look-after his business,. We both came back to house at night time and the', inmates of our housed told that the children of Zulifquar Ali have exchanged hot words with our children. I and my brother Muhammad Shuaib went to the house of Zulifquar Ali and others to make a complaint. We while standing outside of his house pressed the electric call bell on which (1) Zulifquar Ali (2) Sikander Ali,
(3) Maqsood all three sons of Abdul Raheem by caste Jatoi and their servant Ghulam Murtaza son of Muhammad Sachal Chachar resident of Pano Akil came out, and we made them complaint of their children. On our complaint accused Zulifquar and Sikander Ali told us to stay there and went inside the house and at about 12-30 (midnight) came back Zulifquar Ali armed with repeater and Sikander Ali armed with pistol. They asked Maqsood and Ghulam Murtaza to drag Shuaib inside the house. I due to fear of weapon remained silent and in my presence all the accused dragged my brother Muhammad Shuaib inside the bungalow where accused Maqsood and Ghulam Murtaza caught hold the Shuaib by his arms and accused Zulifqar fired at him from his repeater with intention to kill Shuaib who cried and fell down. Sikander made firing in air from his pistol. On my cries Nisar Ahmed son of Abdul Malik (2) Ihsanullah son of Allandad came. Accused seeing them coming towards them ran away. We went over Shuaib and found fire injury above his left hypochondria he was bleeding and lying dead. I with the help of above witnesses took the dead body to Civil Hospital Sukkur where from after postmortem I got it to my house and now leaving the dead body there for funeral ceremony have come for report that the above named accused persons in furtherance of their common intention over the dispute of children have murdered my brother pray action."
3. Learned counsel for the applicant has argued that as per prosecution story Zulifquar fired upon the deceased and Sikander made aerial firing. He has further submitted that as per prosecution case Maqsood and present applicant were holding the deceased when firing was made by Zulifquar. He has argued that no recovery whatsoever was made from the present applicant and that there is no evidence on record to support that the present applicant caught hold of deceased at the time of firing. He has further argued that there was unexplained delay of 11 hours in lodging of the F.I.R.
4. While the distance of Police Station from the place of wardhat was only 2 K.Ms. He has further argued that the statements of witnesses were recorded on 12-2-2010 though F.I.R. Was lodged on 9-2-2010 after delay of about 3 days. He further argued that in this case investigation commenced prior to lodging of F.I.R. And submitted that the postmortem conducted on 9-2-2010 at 1-40 a.m.
5. Contained that P.W. Nisar identified the dead body. He has invited my attention to the daily diary maintained by the police being S. Nos.31 and 33 and argued that the place of occurrence was visited by the police and even dead body was taken to Hospital but the F.I.R. Was not lodged. On the contrary investigation was carried out. He further submitted that the present applicant has been implicated falsely .Without any just cause or reason. Only because the present applicant was employee of Maqsood and Sikander, who have been let of by the police. The learned counsel has further argued that the prosecution story as set out in the F.I.R. Does not tally with the statements of two witnesses namely Ahsanullah and Nisar Ahmed. Lastly he argued that this is a case of further enquiry as the prosecution case is inconsistent and that there is no iota of evidence which connects the present applicant with the commission of alleged offence; hence the applicant is entitled to bail. In support of his contentions, he has relied upon the cases reported as Nooruddin and another v. State (2005 M LD 1267), Mehmood Akhtar v Haji Nazeer Ahmed and 4 others (1995 SCM R 310), Muhammad Haroon and another v. The State (1994 SCM R .2161), Basharat Hussain v.
6. Ghulam Hussain (1978 SCM R 357) Inayatullah v. The State (2004 YLR 2182 ).
7. Conversely the learned counsel for the complainant has argued that there is ample material available on record which connects the applicant with the commission of the alleged offence; hence the applicant is not entitled to bail. He further submitted that if the present applicant would not have caught hold the deceased, the death of the deceased would have not been caused. He further argued that the prosecution story so also the statements of the witnesses are in line with each other and it is a fit case in which bail be refused to the present applicant. He relied upon the following cases:-- Mazhar Iqbal v. The State and another 2010 SCM R 1171.
8. Muhammad Azam and others v. The State 1990 SCM R 1319.
9. Gill Bahar and another v. The State 2002 PCr.LJ 1277.
10. As against the above, the learned A.P.-G. Appearing for the State has very frankly admitted that there is inconsistency in the story of the prosecution as set out in the F.I.R. And the statement of the two above named witnesses. However he opposed the bail on the ground that an innocent person has died. On a query from the Court that any material which connects the present applicant with the commission of alleged offence be brought to the notice of the Court, the learned A.P.-G. Was unable to point out any such material.
11. I have heard the arguments of the learned counsel for the parties and have gone through the material available on record so also the case law cited at the bar.
12. It is an admitted position on record that Zulifquar fired upon the deceased while Sikander made aerial firing. It is the case of the prosecution that Maqsood and present applicant caught hold the deceased. It is also an admitted position that Sikander and Maqsood have been let of by the Police.
13. It is also case of the applicant that no weapon was recovered from the applicant that he made any firing. Delay of 11 hours in lodging of F.I.R. Has not been explained plausibly by the prosecution though the Police Station was at the distance of 2 KMs. From the perusal of police diary being 31 and 33 it appears that police had received the information of the occurrence of the incident and have taken steps including the visiting place of wardhat removal of dead body to the hospital and get body postmortem by the Doctor concerned but no steps towards recording of F.I.R. Were taken though Nisar was all along with police. There is also no plausible explanation for recording of statement of two witnesses namely Ahsanullah and Nisar Ahmed after delay of 3 days of the date of occurrence.
14. Apart from the above, story as set-out in the F.I.R. Is not in line with the statements made by the witnesses under section 161, Cr.P.C. I am mindful of the fact that at bail stage deeper appreciation of the evidence cannot be gone into but the bird-eye view is to be taken on the material available on record. At the bail stage, the Court has to prima facie satisfy itself whether the applicant is connected with the commission of the offence or not. Keeping in view the above legal position, the present material is examined only one can reach to an irresistible conclusion that the delay in loading of F.I.R., delay in recording of the statements of witnesses under section 161, Cr.P.C. And prosecution case' not being consistent carries doubt which makes the case to be a case calling for further enquiry.
15. The case-law cited by the learned counsel for the complainant are distinguishable on facts as in the reported cases the statements made in the F.I.R. Were corroborated by independent witnesses but in the present case, the case of the prosecution is inconsistent and the contents of the F.I.R. Are not supported by any other material. On the other hand the cases cited by the learned counsel for the applicant fully apply to the case in hand.
16. In this view of the matter I had admitted the applicant to bail subject to his furnishing a solvent surety in the sum of Rs.200,000 and P.R. Bond in the like amount to the satisfaction of the trial Court by a short order dated 21-7-2010. These are the reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.