' ATTAULLAH KHAN J.---The accused/petitioner, Qudratullah involved in case F.1.R. No,119 dated 13-8- 2010 of Police Station Dadiwala, District Lakki Marwat registered under sections 302/396, P.P.C.
Having been refused bail by the Courts below has filed the application in hand for the same relief.
2. According to the F.I.R. Lodged by Waheedulah Khan S.H.O. Of Police Station Dadiwala, on 11-8-2010 at 0830 hours, he was on routine gusth of the area when he found a dead body beneath the sand in the land situated in the vicinity of Wanda Akhundan which was taken into custody and then buried in the graveyard. An inquiry under section 156(3), Cr.P.C. Was conducted and on 12-8-2010, one Shahidullah came and claimed that the dead body was of his brother named Younus Ali Khan who on 10-8-2010 at 1100 hours had gone with unknown persons in his Taxi Car No,777/AAQ but did not return. He, however, charged none and no enmity was disclosed for the killing of his brother with anyone.
3. Learned counsel for the petitioner argued that the accused/petitioner is not charged in the F.I.R.; there is no direct evidence against him; nothing has been recovered on his pointation. He was only named by the complainant in his belated statement but that too without proof; that the identification parade is defective because the learned Magistrate who conducted it has stated that the accused was seen by the Identifier in the custody of the police and lastly that the date of murder of the deceased is doubtful keeping in view the time recorded by the doctor in the post- mortem report, i.e, time between death and postmortem examination. He thus termed the case to be that of further inquiry.
4. On the other hand, learned counsel for the complainant and State opposed the grant of bail to the petitioner on the grounds that there is sufficient circumstantial evidence which reasonably connect the petitioner with the crime; that one Badiuzzaman has disclosed in his statement before the police that the petitioner along with other co-accused has committed the murder of the deceased and that there is no mala fide on the part of the complainant to falsely implicate the accused/petitioner. -
5. I have carefully examined the record and considered the arguments of the learned counsel for the parties.
6. In the F.I.R. Nobody has been charged. Daily diary No,6 was recorded on 11-8-2010 and during inquiry under section 156(3), Cr.P.C, the dead body was identified by the complainant who is his brother but he did not name the accused. The record reveals that Wahidullah and Shahidullah were examined by the police on 13-8-2010. Both of them have identified the dead body of the deceased but they have not named the accused. The record also indicates that on 27-8-2010 statement of Gul Razeem Khan was recorded by the police. According to him on 10-8-2010 Younus Ali Khan deceased was present with him in the Taxi Stand when in the meanwhile Qudratullah and Humayoon came there for settlement of taxi fare whereafter they started for their destination.
Thereafter, the witnesses left for Hyderababd and when he returned to his house, he came to know that the deceased had been killed. Thus he charged two persons.
7. For the first time the accused/petitioner was charged by Gul Razeem Khan on 27-8-2010. Here question arises that this witness was present with the deceased in the taxi stand on 10-8-2010 but he remained mum till 27-8-2010 on which date his statement was recorded. This creates doubt.
8. Another fact to be noted is that Shahidullah, brother of the deceased, was examined on 28-8- 2010 who disclosed the name of the accused/petitioner as he was informed by Gul Razeem Khan.
This Shahidullah was again examined on 16-9-2010 and he again charged the accused/petitioner after receipt of knowledge about their involvement. On the same day, one Badiuzzaman was examined by the police who told that the accused were seated in the motorcar of the deceased and he could identify them lateron.
9. The above narration by different persons would reveal that the accused/petitioner is charged on the basis of last seen evidence. There is no ocular testimony to connect him with the commission of the offence.
10. Though detail appreciation of merits of the case is not appreciated at bail stage, but here in the case in hand, the stand of the learned counsel for the petitioner is that the case is of further inquiry.
In my view, in cases falling under the purview of further inquiry, detailed appraisal of materials available on record is permissible and should be assessed in order to reach to a correct conclusion.
11. As stated above, though three persons have named the petitioner but none of them has seen him while committing the murder of the deceased. The chain of connecting the accused/petitioner with the offence is not complete because no incriminating article has been recovered from him or on his pointation. He has not confessed his guilt and we are only left with identification parade which was held in jail premises in the presence of Judicial Magistrate-V1 Lakki Marwat who has stated as under:-- "I would also like to mention that according to the accused, the Identifier has seen him in police lock-up".
12. The above observations, prima facie, makes the case of the accused/petitioner arguable for the purposes of bail as apparently the said identification parade seems to be not free from doubt.
13. The last contention of the learned counsel for the petitioner is that the time of death of the deceased has become doubtful when coupled with the time between death and post-mortem.
The postmortem report discloses that time between death and autopsy is between 48/72 hours. If both these timings are correspond with the timing recorded in the F.I.R., then it becomes conflicting.
This has made the case arguable and of further enquiry.
14. In short, the accused/petitioner is not named in the F.1.R, he was named on the basis of suspicion by the complainant after more than a week. The persons who saw the deceased in the company of the accused/petitioner are not witnesses of the occurrence and no incriminating material has been recovered from the possession or on pointation of the accused/petitioner. The time given between death and post-mortem report has also made the time of death recorded in the F.I.R. As dubious.
15. Tentative assessm ent of the materials so far brought on record, prima facie, brings the case of the accused/petitioner within the ambit of further enquiry.
16. The application is, therefore, allowed and the accused/petitioner is admitted to bail in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
17. As stated above, the observations made in this order are tentative in nature for the purposes of this bail application only and shall not prejudice the mind of the trial Court at the time of trial.