' SHER MUHAMMAD KHAN, J.---Petitioners Mushtaq Ahmad son of Muhammad Ayub, Muhammad Imran and Mushtaq Ahmad sons of Khalifa Bashir Ahmad stand charged under sections 302/324/148/149, P.P.C. Vide F.I.R. No,164 dated 8-12-2010 registered in Police Station Panyala, District D.I. Khan. They have been refused ball from the Courts below. Hence, the instant petition.
2. Short background of the incident, was reported by Abdul Karim son of Abdul Qadir to the local police in Police Station Panyala, at 1300 hours when he came to Police Station in injured condition along with dead body of deceased Mumtaz. He reported that, on 8-10-2010 at 1240 hours he along with Mumtaz (deceased) were present in his shop situated in Grain Market, Panyala Adda in the meanwhile some person/persons started firing at them, as a result he received injury on his right hand while Mumtaz also got injured due to firing and died on the spot. He did not name any person as witness however stated that the occurrence, might have been witnessed by many people; present in the nearby vicinity. Regarding motive of the offence he said that neither he has any enmity with someone nor knows about the enmity of the deceased. He charged unknown person/persons for commission of the offence.
3. On the same day two persons namely Allauddin son of Mir Ghulam and' Fakhruddin son of Sher Ghulam, on visit of the Investigating Officer to the spot, recorded their statements under section 161, Cr.P.C. Stating therein that on that day they were busy in purchasing vegetables from nearby shopkeeper namely Sheikh. At about 1200 hours Amir Shah, Farooq Shah Son of Amir Shah, Imran, Mushtaq sons of Khalifa and Haji Mushtaq son of Ayub Sheikh duly armed with Kalashnikovs came to the shop of Abdul Karim in Grain Market. Malik Mumtaz Khan was already present in the shop. All the above mentioned persons started firing with their respective weapons. They fled away from the scene of occurrence and came there when firing was stopped. They saw that Mumtaz Khan had succumbed to the injuries caused with firing. Abdul Karim shopkeeper was also injured due to firing. They informed father of the deceased and site plan was also prepared on their pointation.
4. Father of the deceased was also informed by the above mentioned persons about the occurrence; therefore, he charged the petitioners and absconding co-accused for commission of the offence.
5. Learned counsel for the petitioners argued that no one is charged by name in the F.I.R. By complainant Abdul Karim. It was also contended that the complainant even did not mention the name of any person, who witnessed the occurrence. It was next argued that P. Ws. Allauddin and Fakhruddin are first cousins of the deceased, who were not present at the time of occurrence but have been cited as eyewitnesses after deliberation and consultation by father of the deceased with the Investigating Officer. He referred, to diary of the S.P investigation, allegedly drafted on 11-10- 2010 wherein it was directed to the I.0 that unknown culprits should be traced as early as possible.
The contention of learned counsel for the petitioners was that on 11-10-2010 the accused were not charged and whatever has been shown in the site plan on 8-10-2010 is forged and fabricated. He lastly contended that supplementary statements recorded after registration of the F.I.R. Have no evidentiary value for depriving the petitioners from concession of bail. He argued that petitioners are entitled to be released on bail. He placed reliance in the cases of Muhammad Amin v. The State (2007 YLR 1181), Umeed Ali v. State (2007 YLR 921), (Tahir Abbas. v. The State (2003 SCM R 426), Bashir (Ahmad v. The State (2004 PCr.LJ 35), Safdar Ali v. The State (2008 PCr.LJ 129), Tariq Bashir v.
The State (PLD 1995 SC 34) and The State v. Rafique Ahmad Channa (2010 SCM R 580).
6. On the contrary, learned counsel for the State and complainant argued that though petitioners are not charged in the F.I.R. But the complainant of the case is not related to both, the parties, which fact has been specifically mentioned by him in his report that he himself has no enmity with anyone and also did not know about the enmity of the deceased. As the complainant, without the help of the nearby persons, took the deadbody of the deceased to Police Station Panyala, therefore, there was no chance for any person who saw the occurrence to disclose their names to the complainant and by this way he charged unknown person(s) for commission of the offence. On the same day after short time, the Investigating Officer visited the spot and P.Ws. Allauddin and Fakhruddin not only disclosed the names of the accused in their statements recorded under section 161, Cr.P.C. But also pointed out all the relevant spots to him for preparing the site plan. He next contended that without loss of time petitioners were charged by father of the deceased in his statement recorded under section 161, Cr.P.C. From the spots attributed to accused by the witnesses, 13 empties 7.62 .Bore were recovered on the pointation of the witnesses by the Investigating Officer. It was also argued that the statements of the witnesses and father of the deceased do not fall in the definition of supplementary statements because there is no other statement of the same witnesses, recorded prior to the statements recorded under section 161, Cr.P.C. As regards the copy of directions given by the S.P Investigation, it was replied by learned counsel that the same was drafted in the Police Station immediately after reporting the matter and on 11-11-2010 the copy of the directions was obtained and placed on file. It is specifically mentioned in the said document that it was drafted on 8-10-2010; therefore, the argument of learned counsel for the petitioners that the site plan, statements of the eye witnesses are forged and fabricated, is without substance. They lastly argued that petitioners are not entitled to concession of bail.
7. I have minutely studied the case file in the light of arguments advanced by learned counsel of the parties.
8. Admittedly, the complainant of the instant case is alien to the accused and was busy in his business at the time of occurrence; therefore, it was not possible for him to name the assailants in the F.I.R. This fact was further elaborated by him in the report by explaining the position that neither he has any enmity with someone nor knows about the enmity of the deceased. The statements of P.Ws. Allauddin, A Fakhruddin and father of the deceased were recorded on the same day by the Investigating Officer at the time of spot inspection, which cannot be treated as supplementary statements because there are no other statements of the same P.Ws., previously recorded, the same are primary and first versions of the witnesses furnished to the Investigating Officer on the first available opportunity. Both the witnesses have immediately charged the accused by name in their statements. Motive for commission of the offence, the dispute over land, has been specifically mentioned, by father of the deceased. About eight bullet entry wounds were present on the corpse of the deceased, fully corroborating the charge against petitioners that the occurrence was the act of more than one person. Thirteen empty shells of 7.62 bore also lend support to the charge against petitioners.
9. The judgments, relied upon by learned counsel of the petitioners, and authored on different facts, having no similarity with the facts and circumstances of the instant case for applying to release petitioners on bail. In the case of Muhammad Amin (supra), father of the deceased had lodged the F.I.R. But did not charge the petitioner of that , case and similar was the case of the injured eye- witness, who had also not charged petitioner in his statement recorded under section 161, Cr.P.C.
The accused was subsequently involved by a witness whose presence was not reflected in the F.I.R., therefore, it was held that the same is open to inquiry. The case of Muhammad Ali (supra) was also of different nature, in which accused was not named in the F.I.R. While specific names of other four persons were mentioned in F.I.R. The apex Court in the case of Tahir Abbas (supra) had granted bail to the accused, 'who was not charged in the F.I.R. But subsequently in supplementary statement of the complainant, although the accused was living in the same locality at a distance of about few yards and the parties. Were known to each other. The same was the case of Bashir.
Ahmad (supra) where the accused was not named in the F.I.R. But were impleaded about 1-1/2 months after the occurrence. In supplementary statements. The case of Safdar Ali (supra) has altogether no relevancy with the facts of the present case. In that case names of the accused persons with specific roles played by them had been mentioned with mathematical precision in the F.I.R. After about 72 days, complainant recorded his supplementary statement and by taking completely U-turn exonerated the accused persons mentioned in the F.I.R. By substituting them with other accused.
' Such circumstance was considered of further inquiry and accused were granted bail. The case of Tariq Bashir (supra), referred to by learned counsel for the petitioners was handed down in a situation that names of the petitioners/accused were not mentioned in the F.I.R. Although two of them, namely Tariq Bashir and Shehzad Bashir were first cousins of the complainant. In the F.I.R., number of the accused given by the complainant was five. During investigation, it was exaggerated from five to nine. Three persons, previously known to the complainant were also implicated and the details of jewellery, ornaments, number of prize bonds and the amount of cash were not, mentioned in the F.I.R.; therefore, the apex Court in this view of the matter, justified the tentative assessm ent of the evidence by learned Judge of the High Court in granting bail to the petitioners.
10. What has been discussed above, does not persuade me to grant bail to accused-petitioners, in the above mentioned circumstances. Hence, the bail application is dismissed. 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.