' SALMAN HAMID, J.---This common order shall decide the fate of Criminal Bail Application No,136 of 2011 Re: Ali Khan Mahar v. The State and Criminal Bail Application No,137 of 2011 Re: Shahwal Jatoi v.
The State,' both of which emanate from one and the same Crime No,10 of 2010, lodged at Police Station, Rasheed Waggan under sections 302, 382, 457, 148 and 149 of Pakistan Penal Code, (F.I.R.).
2. In a nutshell, the case as deducible from the above F.I.R. Was that on 6-4-2010 circa 2-30 a.m.
Shahnawaz Kalhoro, Ghulam Abbas Kalhoro, Sijawal Jatoi accompanied with other three unknown persons, duly armed, intruded into the house of Rasool Bux (Complainant) with the intention to deprive them of their livestock (buffaloes) and when the above accused were still in the course of taking away the buffaloes, complainant and his other relatives got up with the result that the accused tried to escape and upon chase by the family members/complainant, Mst. Zeenat, sister- in-law of the complainant, because of the straight fires of Shahnawaz Kalhoro and Sijawal Jatoi (applicant in Criminal Bail 'Application No,137 of 2010) lost her life. F.I.R. Is the result of such unfortunate occurrence.
3. Case of the applicants before this Court, by way of defence was that, that they have been alluded falsely and that, as far as Ali Khan-Mahar (applicant in Criminal Bail Application No,136 of 2011) is concerned, his name did not appear in the F.I.R. And was implicated subsequently when further statement dated 13-4-2010 of the complainant was recorded. It was also the case of the applicants that subsequently F.I.R. No,58 of 2010 was lodged by the same complainant in respect of the same offence, wherein four more accused in respect of the above incident of 6-4-2010 were- shown in, such F.I.R., besides the above accused (including the two applicants). It was, therefore, urged that the complainant has tried to implicate the applicants unnecessarily and/or at best because of above uncertain position, case of further inquiry had been made out. It was also argued by the- learned counsel for the applicants that the name of accused Ghulam Abbas at the time of recording of further Statement dated 13-4-2010 had been dropped by the complainant, which again shows the inconsistency.
3. Learned counsel for the applicant in Criminal Bail Application No,137 of 2011 also raised the ground of double jeopardy by arguing that the second F.I.R. Is hit by Article 13 of the Constitution of Pakistan, 1973.
4. Learned State Counsel vehemently resisted the applications. It was argued that if the first. F.I.R.
No,10 of'2010 and further statement dated 13-4-2010 of the complainant and the second F.I.R. No,58 of 2010 are looked into, it would become evident that the same are consistent to each other and there was no discrepancy. It was also brought to the notice of this Court that the complainant originally gave all names of the accused, as now available in the first and second F.I.Rs, and in the statement but because of the connivance and/or. Involvement of police constable, namely Ghulam Nabi, father of accused Samad in the commission of offence, mentioned above, such was left out intentionally and deliberately by the police concerned. To fortify this, it was mentioned that the Complainant filed C.P. No,S-1676 of 2010 before the Circuit Bench, Larkana wherein it was contended by the complainant that the S.H.O. Concerned with active connivance of private persons/accused in the F.I.R. Did not mention the names of all accused (Mazhar, Samad and one police constable Ghulam Nabi father of accused Samand) at whose instance and conspiracy, the incident had taken place and that S.H.O., Police Station, Rasheed Waggan at the time of drawing of the F.I.R. (No,10 of 2010) stated that names of all accused have been included. It was further mentioned in the petition that after challan of the case, the S.H.O. Police Station Rasheed Waggan let off Ghulam Abbas Kalhoro from the case and his name had been put in Column No,2 of the challan and that the statement of the complainant was wrongly recorded by showing that he (Complainant) has exonerated Ghulam Shabir, which in reality was not the case. It was mentioned that it is a matter of record that such petition came up before this Court among other dates on 1- 9-2010 and following Order was passed:- "This petition is filed for registration of F.I.R. For offence which taken place on 6-4-2010 at night time about the murder of sister-in-law of the complainant Rasool Bux. As according to him, F.I.R. Was not registered against seven persons by excluding names of some of main accused. Today statement is filed by HC Javed Ali Wagan, I/C S.H.O. Police Station Rasheed Waggan by submitting that F.I.R.
No, 10 of 2010 has already been investigated and challan has been filed on 11-5-2010 against three nominated accused persons in custody and four nominated persons as absconders. Since allegation of the complainant is also against some other persons including the persons nominated in the F.I.R. Therefore, S.H.O. Police Station Rasheed Waggan is directed to record statement of the petitioner and to register the F.I.R. From the proposed F.I.R. Duly signed by the complainant in book under section 154, Cr.P.C. And compliance of the order may be communicated to this Court through Additional Registrar of this court.
5. It was thus argued that looking at the above fact of the matter, all the arguments raised by the learned counsel regarding letting off one accused in the statement and lodging of second F.I.R.
Does not hold the ground. It was further argued by the learned State Counsel that the postmortem report clearly shows that Mst. Zeenat died of gun shots which were released from the weapons of the applicants and it prima facie and tentatively show that such were being carried by the above two applicants. It was also argued that the complainant identified the applicants in the identification parade, thus strengthened the fact that the applicants were available on the fateful day. In this view of the matter, learned State Counsel argued that the applications require no consideration and the same be dismissed. Regarding double jeopardy, it was argued that since the case has, not been decided and the applicants have not been prosecuted, provision of Article 13 of the Constitution has no application.
6. I have considered the arguments of learned counsel on either side and also looked into the case files; so also the petition No, S-1676 of 2010, filed by the complainant and the Order passed therein.
If F.I.R., further statement of complainant dated 134-2010 and the F.I.R. No,58 of 2010 and the contents of C.P. No,S-1676 of 2010 are' looked into mutually, it would become plain that the case of the complainant had remained consistent and the moment he become conscious that the police concerned had conned him by not showing all the names of the accused in the F I.R. And also the fact that in the statement dated 13-4-2010 the name of Ghulam Abbas was given away, he instantly preferred C.P. No,S-1676 of 2010 with the result that Order dated 1-9-2010 reproduced above was passed and the damage was controlled. It is clear from the F.I.R. And the statement dated 13-4-2010 that the applicants had been associated with the offence directly. Not only this, it is also clearly mentioned in the F.I.R. That they shot at Mst. Zeenat with the result she departed this life. It is also clear from the filing of the F.I.R. That the accused, counting the present applicants tried to run with the buffaloes after trespassing into the house of the complainant and upon pursuit Zeenat got shot. Besides this, the complainant reinforced the fact that the applicants were present on the significant day by spotting them in 'the identification parade. All these circumstances are patent and clear from the F.I.Rs, and the further statement dated 13-4-2010 of the complainant.
Tentatively, gauging from the above, the applicants have failed to make out the case of further inquiry.
7. Coming to the ground of Article 13 of the Constitution, it may be noted that Article 13(a) provides that no person shall be prosecuted or punished for the same offence more than once. This provision would become applicable if the accused is "convicted" and "punished". Such stage has not turned up in the case.
8. Since prima facie the applicants have been found associated directly with the commission of the offence of which they are charged with, at this stage of time they are not entitled to bail and therefore, the applications are hereby dismissed.
9. It goes without saying that the observations made hereinabove shall not affect, in way, the trial of the case, which would be decided on its own merits.