1. ORDER SHAHID ANWAR BAJWA; J.--F.I.R. No.24 of 2010 was recorded at Police Station Katcho Bindi District Ghotki on 14-8-2010 at 2-00 p.m. For an offence allegedly committed on 9-8-2010 at 5-00 p.m. Complainant was one Mst.Kalsoom. She stated that about two years prior to incident one Hayoo was murdered and father of the complainant was alleged by family of Hayoo as the culprit.
2. Facing such threats she stated that her father along with entire family shifted to katcha area. When floods were expected his father asked his relatives that he wanted to shift from katcha area and the relatives consequently were in the process of shifting him. On the way a group of about 15 persons some armed with kalashnikovs others armed with hatchets and one armed with a pistol waylaid them. She stated that by force of arms she and her father were taken back to the river bank. One Wazir asked the others to avenge murder of Hayoo. Rahib Ghoto instigated the others to kill father of the complainant and all the accused persons fired shots upon the father, who raised cries and fell in the water. Dead body was put in a boat, taken to river and thrown in the river and complainant stated due to scare of weapons persons of her party remained silent. After culprits had deported she came to the village and went to the nekmard who was not available. After few days she again went to the nekmard, apprised him of facts and with his help came to the police station and lodged the F.I.R. The present applicant was arrested and from him one pistol was recovered.
3. Learned counsel for the applicant made the following submissions:--
(1) Applicant is innocent and has been implicated in view of enmity.
(2) There is a delay of five days in lodging the F.I.R.
(3) There are no specific allegations against the applicant and allegations are of general nature.
4. Learned counsel read from a report by S.P.O. Investigation Mirpur Mathelo where the SPO has given opinion that there are contradictions in statements of the complainant and witnesses.
5. Lastly learned counsel argued that the co-accused who it was alleged in the F.I.R. Had also fired have been placed in column 2 of the challan submitted on 30-8-2010.
4. On the question of delay in the lodging of F.I.R. Learned counsel relied upon Zaheer Ahmad Khan v.
5. The State (2003 SCM R 919), Parial v. The State (2006 PCr.LJ 1212), and Abida and others v. The State (2007 M LD 1303). On the point of value of the opinion of police learned counsel relied upon Abbas v.
6. The. State (2009,PCr.LJ 384). On the point that case is of further enquiry, learned counsel relied upon Muhammad Younis alias Macca v. The State (2007 M LD 1279).
7. Mr. Ghulam Murtaza Korai learned Advocate for the complainant submitted that as far as placing name of the co-accused in column 2 is concerned an application under section 190, Cr.P.C. Was filed and the trial Court has allowed that application and joined them as accused persons. As far as investigation by S.P.O. Is concerned learned counsel referred to Article 18(2) of the Police Order and submitted that for changes of investigation specific procedure has been prescribed and no such specific procedure has been followed. Regarding scope of further enquiry learned counsel relied upon Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCM R 1765). On the point that dead body had not been recovered in this case, learned counsel relied upon Ahmad and others v. The State (1987 M LD 1959).
8. Learned A.P.G. Supported the impugned order and opposed this application. He relied upon Allah Dino and 6 others v. The State (2003 PCr.LJ 135) for his contention that reinvestigation report could not be considered as a proof of innocence of the accused. Learned counsel relied upon Shoukar Illahi v. Javed Iqbal and others 2010 SCM R 966 for his contention that police opinion regarding innocence of the accused is not binding on the court in bail matters.
9. Learned counsel for the applicant while exercising his right of reply submitted that investigation by SPO Mirpur Mathelo was not a reinvestigation but it was during the course of investigation that an application was filed by brother of the present applicant and on that application investigation was ordered.
10. I have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
11. First submission by the learned counsel for the applicant was that he had been falsely implicated due to enmity. Reply to this contention by learned counsel for the complainant was that the applicant belongs to Chachar community and enmity in between member of Ghota community. In my opinion not much emphasis can be laid down at the altar of enmity because enmity is always a two edged sword which cuts both ways. Where as it can be argued that some one has been falsely implicated because of enmity it can be also argued with equal, validity and most of the time will equal vehemence, that someone has been murdered because of the enmity Therefore, enmity neither supports nor dislodges, at least at the bail stage, case of any of the parties.
12. Second contention of the learned counsel for the applicant was that there has been five days delay in lodging of the F.I.R. According to learned counsel for the applicant it is fatal to the case of the prosecution if F.I.R. Is lodged after such a long delay. Response by learned counsel for the complainant was that in the F.I.R. Itself complainant Mst.Kalsoom has stated that after she came to her village she went to the nekmard but nekmard was not available there. Then after few days when she was able to meet with the nekmard she went to the police station and lodged the F.I.R.
13. Learned counsel for the applicant firstly relied upon Zaheed Ahmad's Khan's case (supra).
14. Allegation against Khan was that he fired twice from his pistol at the complainant but the complainant luckily survived. The Supreme Court observed that it appeared that there was a family dispute and prima facie delay in lodging of the F.I.R. Would speak for itself. In Parial's case (supra) facts were that one Shairal appeared at police station on 30-12-2004 and stated that he was a cultivator by a profession and land adjoining his land belonging to forest department had been occupied by Parial. Complainant stated that he spoke to local nekmard about such illegal occupation and because of that Parial was no more on talking terms with him. On 30-12-2004 when complainant his brother, nephew and cousin were ploughing their land at about 5-00 p.m.
15. Parial armed with kalashnikovs along with three other persons duly armed came and started firing.
16. Complainant and his family took shelter. Upon hearing fire brother of the complainant came towards them and it was alleged that Parial fired at his brother and his co-accused gave him hatchet blow and another co-accused gave butt blows and thereafter all the culprits escaped.
17. Brother of the complainant expired. In the. Meantime police came and dead body was taken to the hospital. After postmortem the complainant appeared at the police station and lodged his F.I.R. It was three circumstances which weighed with the Court. Firstly there was delay of five hours and 30 minutes in lodging F.I.R.; secondly number of the F.I.R. Was mentioned in every documents even in those which were prepared prior to registration of F.I.R. And thirdly factual position in respect of presence or absence of accused Kaloo made contents of the F.I.R. Doubtful.
18. The third case relied upon by the learned counsel was that of Abida (supra). In this case there was delay of seven days in lodging of the F.I.R. Facts of the case were that one Shafqat Ali accused was alleged to have fired at a lady which hit her on the heart and as a result of which she died at the spot. It was held by the High Court that complainant had ample time for consultation and premeditation before lodging the F.I.R. Which created doubt regarding authenticity of the prosecution's case. In the present case there is a delay of five days in lodging the F.I.R. However, what should not be ignored is that it is stated by the complainant that the family had shifted to katcha area and due to floods they were shifting back from katcha area to pacca area when the alleged incident took place. The complainant is an illiterate lady, therefore, factum of delay in lodging the F.I.R., standing alone, will not be, in the circumstances fatal to the case of the prosecution.
19. Third contention by the learned counsel was that there was general allegations and no specific allegations had been levelled against the applicant. It is stated in the F.I.R. That the armed persons fired at the deceased. Allegations is against all the armed persons firing at a single person. Specific allegations of firing is there in the F.I.R. In presence of such specific allegations it cannot be said that the allegations are general and not specific.
20. Next contention of the learned counsel was that the co-accused had been shown in Column 2 of the challan and were let- by the police. Learned counsel relied upon Wazir v. The State (2008 M LD 646). In this case the complainant had named 26 persons as having participated in the crime but after investigation police did not agree with that version and showed some of them in column 2. A Single Judge of this Court observed that although 26 persons with very specific roles were stated in the F.I.R. But police has differed with version of the complainant and had named five of them in Column 2 and that this created a doubt to some extent in the involvement of each and every person. On the other hand learned A.P.-G. Relied upon Shoukar Illahi's case (supra). In this case it was stated that Shoukat Illahi was lifting sand from various places and he tried to lift sand from place of the complainant which was objected to and such objection caused annoyance. It was stated by the complainant that thereafter petitioner along with four co-accused persons came with pistols in their hands gave proverbial hakal and started firing as a result of which brother of the complainant died. Police in its report declared one of the accused as innocent, who was then granted bail. The Supreme Court observed as under:-- "As regards grant of bail on the ground that police declared the petitioner innocent during investigation, suffice it to say that it is not a valid ground for grant of bail as the bail can be granted in the case falling under prohibitory clause; firstly on the ground if the Court finds that there are reasonable grounds for believing that the accused has not committed the offence; secondly, the accused is sick, infirm, under the age of 16 years, his remaining in jail would be detrimental to his life or woman; and thirdly, if the case requires further inquiry into the guilt of the accused that he has not committed a non-bailable offence etc. Such facts are not available in the present case, therefore, the petitioner cannot take benefit solely on the ground that the police found him innocent. Even otherwise, the opinion of police is not binding upon the Courts."
21. To the same effect is the observation in Allah Dino's case (supra). Another thing which must be taken into consideration is submission by learned counsel for the complainant that though the co- accused were shown in Column 2 of the challan, on an application under section 190 Cr.P.C. The trial court allowed that application and ordered that such persons be joined as accused in the trial.
22. Therefore, for the reason that report by police is not binding on the court it cannot be a ground for allowing bail to an applicant and secondly for the reason that the trial court has ordered that such persons as had been placed in Column 2 be joined as accused persons placing of names of co- accused in Column 2 cannot be a ground for allowing bail application to the present applicant.
23. However, peculiar facts of this case is that corpus delicti has not been recovered. Therefore, it cannot be said as to how, if at all, father of the complainant was murdered. Learned counsel for the complainant relied upon Ahmad's case (supra). In this case it was alleged that three persons had murdered a lady by strangulating her and thereafter they disposed of her body and dead body was never recovered. Three witnesses were witnesses of the incident. Bail was urged on the ground that dead body had not been recovered. A Single Bench of Lahore High Court held that mere fact that the dead body was not recovered will not entitle the petitioner to the facility of the bail. In the present case from the place of wardat no blood-stained earth has been recovered and no empties have been recovered. It was stated by the A.P.-G. That due to floods such proofs had been washed away. He further stated that irrigation work was going on due to which evidence had been destroyed in this regard. That may or may not have been so. It in any case creates a doubt. It is settled law that benefit of any doubt even at bail stage must be given to the accused persons. If any authority is needed one may refer to Muhammad Younis alias Macca v. The State (2007 M LD 1279).
24. Result of the above discussion is that this bail application is allowed. Let the applicant be admitted to bail for a sum of Rs.300,000 (Three Lacs) with P.R. Bond in the like amount and two sureties each in the like amount to the satisfaction of the trial Court.