' MUHAMMAD ALI MAZHAR, J.---The applicants have applied post-arrest bail in Crime No, 35 of 2011, lodged under sections 302, 324, 337 H (2), 114, 148, 149, P.P.C., at P.S. Dubar.
2. The complainant Mithal lodged an F.I.R. On 22-5-2011 in which he reported that there is bloodshed dispute between Sadardin Khoso and Sardar Lal Muhammad Khan Panhwar over the land which is being cultivated by the complainant and his deceased uncle Shahzado. On 21-5-2011, he along with his deceased uncle and three other persons was working when five accused persons, mentioned in .The F.I.R. And two unidentified persons with open faces armed with KKs and guns came. Sadardin Khoso asked them that why they were standing there, on which they told the complainant that "you have murdered our persons" and on saying this, Sadardin Khoso instigated other accused persons to commit murder and then accused Saeed Ahmed made straight fire upon complainant's cousin Shahzado from K.K. And other persons made straight fire upon complainant with intention to commit his murder. Thereafter, they went away towards houses of village Sadardin Khoso by making aerial firing. Complainant's uncle Shahzado sustained injuries and was lying dead. Body was brought to taluka hospital, Rqhri for postmortem and thereafter body was brought to complainant's village, then he went to Sardar Lal Muhammad Panhwar and narrated facts who advised the complainant to lodge F.I.R.
3. Both the applicants applied bail in the trial court in B.A. No,452 of 2011, which was dismissed vide order dated 18-8-2011. The main reason for dismissal of bail application was that though the applicants' names are not mentioned in the F.I.R. But complainant's statement was recorded in which he nominated both the applicants and also explained that due to untoward incident, he could not recall the names of accused persons instantly, but later on he nominated the applicants and eyewitnesses, namely, Muhammad Hashim and Imtiaz have also supported the version of the complainant in their statements recorded under section 161, Cr.P.C.
4. The learned, counsel for the applicants argued that there is inordinate and unexplained delay of about 10 hours in registration of F.I.R., which has been registered after due consultation and deliberation. He further argued that names of both the applicants are not mentioned in the F.I.R.
And they have been implicated in this case on the basis of statement recorded under section 161, Cr.P.C. Learned counsel further averred that complainant and applicants party are resident of one and the same village, therefore, it was not possible that names of various persons have been mentioned in the F.I.R. But the present applicants could not be identified by complainant party for nominating them in the F.I.R. No role has been mentioned against the applicants in the F.I.R. Except that two unidentified persons were accompanied with other co-accused. He further argued that even by considering the statements recorded under section 161, Cr.P.C, no specific role has been attributed to the applicants. The case of applicants clearly falls within the phrase of further inquiry as envisaged under section 497(2), Cr.P.C. It was further argued that even in the subsequent statements in which applicants were implicated, no source of information has been stated for the 4 identification of the applicants. Further no - recovery was made from the applicants. In support of his arguments, he relied upon the following case-laws:- 2007 Pcr.LJ 1497 (Imran Sikandar v. The State), in which it was held that accused was neither named in the F.I.R. Nor his name was included in the names of accused. Complainant had not disclosed as to how he subsequently came to know about participation of accused in the occurrence and veracity of supplementary statement of complainant in this regard would be seen by trial court after recording evidence. No specific role was attributed to the accused, therefore, bail was allowed.
2006 YLR 2382 (Muhammad Iqbal v. The State), in which it was held that ten accused were named and some were shown to be unknown. Accused was not named in the F.I.R. But was named on the very next day of occurrence by police officer in his statement recorded under section 161, Cr.P.C.
Case of accused was treated to be of further inquiry and bail was allowed.
2011 SCM R 161 (Abid All v. The State). In this case, the hon'ble Supreme Court held that bail cannot be withheld as punishment and even for the purposes of bail law is not to be stretched in favour of prosecution. Name of accused was not mentioned in the F.I.R. But his name was included in the list of accused in supplementary statement. There was no explanation available in this regard, therefore, case of accused falls under the category of further inquiry. The court further held that although the challan has been submitted in the court but still prima facie case of the petitioner appears to be one of further inquiry and is covered under the provisions of section 497(2), Cr.P.C.
And becomes right of accused that he be released on bail.
2003 SCM R 426 (Tahir Abbas v, The State), In this case it was held that complainant had involved the accused in the case in his supplementary statement and not in the F.I.R., although the accused was living in the same locality at a distance of about few yards and the parties were known to each other. No explanation in this regard was available. Case of accused, therefore, was of further inquiry. Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was admitted to bail accordingly.
5. Conversely, the learned D.P.-G. Argued that there is no illegality in the order of the trial court whereby bail application was dismissed. He further argued that applicants have been nominated subsequently by way of supplementary statement recorded under section 161, Cr.P.C. And due to horrible incident, complainant could not point out names of present applicants in the F.I.R. He further argued that since both the applicants have been implicated and nominated' by way of supplementary statement, therefore, they are not entitled to the concession of bail. In response to the case-law cited by learned counsel for the applicants, he argued that each and every case is to be decided on its own facts and he referred to 2010 SCM R 861 (Mudassar Altaf v. The State), in which, the hon'ble Supreme Court while considering the requisite factors for granting bail held that each and every criminal case is to be decided on its own peculiar circumstances and facts. It was further held that mere mentioning the name of accused in Column No,2 wlfile submitting challan by police does not debar the courts to evaluate the material on record. Finding of police is not binding on the court and while granting or refusing bail, court can take into consideration such aspect of the matter.
6. The judgment cited by the learned D.P.-G. Is distinguishable as in the case in hand, no question regarding the placement of name of accused in Column No,2 is involved but the bail has been applied on the ground that his name was subsequently added in the array of accused by way of supplementary statement.
7. After hearing the pros and cons, I am of the view that it is an admitted position that names of both the applicants are not mentioned in the F.I.R. And they were subsequently implicated in the case by way of statement recorded under section 161, Cr.P.C. It is also clear that there is at A least 10 hours delay in lodging the F.I.R. And possibility cannot be ruled out that names of the applicants were implicated after due consultation and deliberation. All the applicants were identified at the place of occurrence except these two applicants who were named subsequently while it is a fact that complainant and accused party were already familiar to each other and residing in the same village. It is also a case of present applicants that nothing has been recovered from them. I am fully fortified by the dictum laid down by Hon'ble Supreme court reported in 2011 SCM R 161 that bail cannot withheld as punishment and even for the purpose of bail, law is not to be stretched in favour of prosecution. Similarly, in another case reported in 2003 SCM R 426, the Hon'ble Supreme Court allowed bail on the ground that complainant had implicated accused in the case in supplementary statement and not in the F.I.R. And no explanation was available in this regard.
8. The main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. Is that if the Court on the basis of tentative assessment of evidence forms an opinion that prima facie reasonable grounds existed to believe that accused has not committed an offence with which he is being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. Actual test for grant or refusal of bail rests in availability of reasonable grounds, which mean the grounds which appeal to a reasonable and prudent man. The expression reasonable ground denotes a stronger meaning then a mere bald allegation of suspicion.
9. The whys and wherefores lead me to an irresistible conclusion that at present, the case of the applicants falls within the phrase of further inquiry in terms of section 497(2) Cr.P.C, therefore, this bail application is allowed and the applicants are granted bail subject to their furnishing solvent surety in the sum of Rs,200,000 (Rupees Two Hundred Thousands) each with PR bond in the like amount to the satisfaction of trial Court. The observations made hereinabove are tentative in nature and would not affect the case of either party.