' SARDAR MUHAMMAD SHAMIM, KHAN, J.---This order shall dispose of Criminal Miscellaneous No,3690-B/2010, filed by Habibullah, petitioner and Criminal Miscellaneous No,2350-B/2010, filed by Riaz Hussain, petitioner, as both the cases have arisen out of the same F.I.R.
2. Habibullah and Riaz Hussain, petitioners, seek their bail after arrest in case F.I.R. No,67 dated 9-3- 2010 for the offence under sections 302, 34 and 404 of P.P.C., registered at Police Station Old Kotwali, District Multan.
3. According to the F.I.R., on 9-3-2010, Muhammad Jamil Khan, complainant was sleeping in his house when at about 7-00 a.m. Door of his house was knocked when he came out, Nazar Hayat Khan, his paternal cousin told him that two dead bodies of young persons were lying in the street.
Complainant along his brother Amjad Khan and Nazar Hayat Khan reached at the spot and saw the dead bodies of Muhammad Ashgar Khan son of the complainant and Waqas Khan, nephew of the complainant were lying there, so the complainant lodged the instant F.I.R. The complainant and other P.Ws. Observed fire-arm injuries on the person of both the deceased.
4. Learned counsel for the petitioners contend that it was an unseen occurrence and the petitioners were not nominated in the F.I.R.; that the petitioners have been falsely involved in this case on the basis of last seen evidence on the same day i.e, on 9-3-2010; that police recorded the statements of Tariq Aziz and Muhammad Yasir P.Ws. And according to their evidence on 8-3-2010, at about 11- 00 p.m., Muhammad Asghar and Waqas Khan were taking cold drink at the shop of Muhammad Tariq Aziz when both the petitioners arrived there on a car and took both the deceased persons along with them in order to serve them with dinner. Police also recorded the statements of Muhammad Jamshed Khan and Muhammad Ashiq P.Ws. And, according to their statements, petitioners took both the deceased persons from their house so, no reliance can be placed on such contrary statements of P.Ws regarding the last seen evidence of the prosecution; that police recorded the supplementary statement of aforementioned Tariq Aziz, P.W. On 10-3-2010, who stated before the police that on 9-3-2010, at about 2/3-00 a.m. (at night), he saw that Riaz Hussain, petitioner, was sitting on driving seat of the car, Habibullah, petitioner was sitting on the front seat, whereas, Waqas Khan and Muhammad Asghar, deceased persons were sitting on the'rear seats.
He identified them in the light of the car; that this evidence of Tariq Aziz is not believable as he did not state this fact before the police when his statement under section 161 of Cr.P.C. Was recorded on 9-3-2010; that police also recorded the statement of Muhammad Ramzan on 10-3-2010 and, according to his statement on 9-3-2010, at about 2-30 a.m. (at night), he was sleeping in his house and he got up at the report of firing and saw in the street that one white car, whose light was on from inside, was being driven by Riaz Hussain, petitioner, and on its front seat Habibullah petitioner was sitting but this statement of Muhammad Ramzan does not connect the petitioners with the commission of offence; that police recovered the car from the possession of Habibullah petitioner on 11-3-2010 and, according to the prosecution version there were sign of fire in the car and there was blood on the back Patti of plastic; that this car was allegedly recovered when it was parked in the garage of the house of Habibullah, petitioner; that the alleged occurrence took place on 8-3- 2010, whereas, the car was allegedly recovered on 11-3-2010 and the petitioner had ample time 'to wash the blood in the said car if any; that police recovered pistol from the possession of Habibullah during investigation and police also allegedly secured empty cartridges from the car but, according to the report of Forensic Science Laboratory, the empty cartridges, secured from the car were not fired from the pistol recovered from the possession of the petitioner so, the recovery of pistol was not a corroborative piece of evidence against Habibullah, petitioner; that on 13-3-2010, police allegedly recovered one mobile phone NOKIA belonging to Muhammad Waqas lying in a cupboard in the house of co-accused Riaz Hussain but this recovery cannot be believed as on 25- 3-2010 police prepared a memo of place where allegedly Riaz Hussain threw a mobile phone and valet belonging to both the deceased persons in a pond; that keeping in view circumstantial evidence produced by the prosecution, it has been, contended that there was no sufficient evidence, available on the record to connect the petitioners with the commission of offence, so, they have prayed for grant of bail to the petitioners. Reliance has been placed on the cases of Abdul Ghani v. The State (2009 YLR 795), Muhammad Shahid v. The State and others (2009 YLR 2281), Maulana Abdul Aziz v. The State (2009 SCM R 1210), Sajid Khan v. The State (2009 YLR 274), Muhammad Ilyas v. The State (2009 YLR 2311) and Abdul Aziz and another v. The State and another (2010 PCr.LJ 1619).
5. Learned counsel for the complainant as well as learned D.P.-G. Have vehemently opposed these applications on the grounds that although according to the evidence of Tariq Aziz and Muhammad Yasir, both the deceased persons were taken by the petitioners from the shop of Tariq Aziz when they were taking cold drinks and according to the evidence of Muhammad Jamshed Khan and Muhammad Ashiq, P.Ws., both the deceased were, taken by the petitioners from their house but there was no contradiction in aforementioned evidence because there was a small distance between the house and the shop; that there was evidence of Tariq Aziz, P.W. That on 9-3-2010 at about 2/3-00 a.m. (at night), he saw both the petitioners and both the deceased in a car; that police recovered car from the possession of Habibullah, petitioner, and there was sign of bullet inside the car and the poshish of rear seat was blood stained; that pistol was also recovered from the possession of Habibullah, petitioner which is corroborative piece of evidence and negative report of Forensic Science Laboratory cannot be looked into at bail stage; that Habibullah, petitioner also got recovered mobile phone of Waqas, deceased; so, there was sufficient incriminating evidence available against the petitioners connecting them with the commission of offence, therefore, they were not entitled to the grant of bail. Reliance has placed on the cases of Rana Muhammad Asqhar Ali v. The State (2007 YLR 204), Raja Fazal-ur-Rehman v. Muhammad Afzal and other (2010 SCM R 179) and Zafar Munir v. The State 2006 M LD 1905.
6. I have heard the arguments of learned counsel for the parties at length and have perused the record carefully with their able assistance.
7. Admittedly, it was an unseen occurrence and the petitioners were not nominated in the F.I.R.
Prosecution has produced two different A sets of last seen evidence against the petitioners. Perusal of statements of Muhammad Tariq Aziz ,and Muhammad Yasir, P.Ws. Reveal that both the deceased persons were taken by the petitioners at 11-00 p.m. On 8-3-2010 from the General Store of Muhammad Tariq Aziz, P.W., when they were taking cold drink. Contrary to the versions of these P.Ws., Muhammad Jamshed Khan and Muhammad Ashiq, P.Ws., stated before the police that on 8- 3-2010 at 11-00 p.m., they were walking outside their house when both the petitioners came over there and asked from them regarding Waqas Khan and Muhammad Asghar and they were informed that they were inside their house. Habibullah, petitioner, made a telephonic call to Waqas Khan in the presence of the witnesses and knocked the door of their house, when Waqas Khan and Muhammad Asghar came out their house; they were taken by the petitioners in their car.
8. Keeping in view the last seen evidence, produced by the prosecution against the petitioners, it cannot be ascertained with certainty that if both the deceased were taken by the petitioners from the shop when they were taking cold drinks or from their house, after knocking the door by the petitioners as the time of taking away both the deceased persons by the petitioners is same i.e, at 11-00 p.m. Another piece of evidence against the petitioner is the supplementary statement of Tariq Aziz, P.W., which was recorded on 10-3-2010 and, according to his statement on 9-3-2010, at 2/3-00 a.m. (at night), he saw both the petitioners as well as both the deceased in the car. Tariq Aziz, P.W.
Did not state this fact on 9-3-2010 when his first statement was recorded by the police. Perusal of statement dated 10-3-2010, reveals that he has not explained that why this fact was not stated by him in his statement before the police which was recorded on 9-3-2010. So, veracity of the statement of Tariq Aziz P.W. Would be adjudged at the time of trial. Police, on 10-3-2010, recorded the statement of Muhammad Ramzan, P.W., who allegedly heard the report of fire when he was sleeping in his house and saw in the street that Riaz Hussain, petitioner, was driving the car, whereas, Habibullah, petitioner was seated on the front seat. The statement of Muhammad Ramzan, P.W., is not incriminating evidence against the petitioners connecting them with the commission of offence. Prima facie, it is ununderstandable that if the petitioners had taken both the deceased persons at 11-00 p.m. Either from their house or from the shop when they were taking cold drinks then what compelled them to return back at the same place at about 2/3-00 a.m. After about 3/4 hours. Police allegedly recovered car belonging to Habibullah, petitioner which was parked in the garage of his residence and, according to the prosecution, the poshish of rear seat was blood-stained. Habibullah, petitioner had ample time to wash blood as car was allegedly recovered on 11-3-2010 after three days of the occurrence. The police also allegedly recovered pistol from the possession of the petitioner Habibullah but the empty cartridges allegedly secured from the car were not found fired from the pistol recovered from the possession of the petitioners according to the report of Forensic Science Laboratory. So, the recovery of pistol is not a corroborative piece of evidence against the petitioner Habibullah. Perusal of record also reveals that on 25-3-2010, police recorded the statements of Liaqat Ali and Abdul Rehman, constables, that Riaz Hussain, accused, pointed out to them a dirty pond near Chowk Khoni Burj where mobile and valet belonging to both the deceased persons were thrown by him and in this way he destroyed the case property. On 25-3-2010, police also prepared site plan regarding the aforementioned place where the mobile phone and valet of the deceased persons were thrown in pond by Riaz Hussain, petitioner. Keeping in view the aforementioned statements, police added section 404 of P.P.C. Against the petitioners. Surprisingly, on 13-3-2010, twelve days prior to the evidence of destroying mobile phone and valet of the deceased person by Riaz Hussain, petitioner, the police allegedly recovered mobile phone of Muhammad Waqas Khan, deceased at the pointation of Habibullah, petitioner, from a cupboard lying in the house of Riaz Hussain, petitioner. Perusal of this recovery memo also reveals that initially police prepared this memo on 13-4-2010 but thereafter, by cutting the month, the date was shown as 13-3-2010. So, the recovery of mobile phone from the possession of Habibullah, petitioner, prima facie, seems to be doubtful.
9. For what has been discussed above, in my view, case of the petitioners comes within the purview of further inquiry; therefore, these applications are accepted and the petitioners are admitted to bail, subject to their furnishing bail bonds in the sum of Rs,2,00,000 each with two sureties each, in the like amount to the satisfaction of learned trial Court.
10. However, it is made clear that the observations made in this order, are tentative in nature and shall not prejudice case of either party during trial.