'SHAHID HAMEED DAR, J.---At the very outset the learned counsel for the petitioner wishes to withdraw the instant petition to the extent of Umer Farooq accused-petitioner dismissed as having not been pressed.
2. So far as Muhammad Irfran accused-petitioner is concerned, he was arrested on 8-8-2010 in connection with case F.I.R. No,12 of /007, for offences under sections 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(iii), 337-F(v), 337-L(2), 427, 404, 148, 149, P.P.C., registered at Police Station Lawa, Tehsil Talagang, District Chakwal.
3. Briefly, Khalid Mehmood complainant has alleged in the F.I.R. That Muhammad Irfan (petitioner) armed with Kalashnikov, in the company of his armed co-accused made incessant firing at the vehicles driven by the complainant party as a result whereof, 7 persons Gohar Khan, Muhammad Yar. Yaqub Khan, Muhammad Ilyas, Lal Khan, Muhammad Nasir, and Khalid Saeed lost their lives and four others namely Khalid Mehmood, Muhammad Hanif, Sajid Akhtar and Muhammad Ijaz received multiple firearm injuries; the firing made by the trio of Muhammad Irfan, Malik Khan and Nazar Khan caused the death of Muhammad Yaqub, Muhammad Ilyas, Khalid Saeed and Muhammad Nasir. The motive behind the occurrence pertained to previous enmity between the parties which had already severed the lifeline of as many as five persons on both the sides.
4. Learned counsel for the 'petitioner submits that there are four sets of accused and each one has been burdened with a specific liability by the complainant; Aitbar Khan and Muhammad Riaz co- accused of the petitioner had been admitted to post-arrest bail (Criminal Miscellaneous No,337-B of 2010) and (Criminal Miscellaneous No,1885-B of 2010) vide orders dated 24-3-2010 and 19-1-2010 respectively; the complainant after registration of the F.I.R. Made a supplementary statement on 26-2-2007 wherein he changed the tenor of roles attributed to Aitbar Khan, Muhammad Riaz and Muhammad Irfan accused with the contention/ improvement that Aitbar Khan and Muhammad Riaz accused had fired effectively at the time of occurrence, whereas, he contended vice versa in respect of Muhammad Irfan accused, rather, let him off the hook by altering the allegation to an absolute new look; all the witnesses in their statements under section 161, Cr.P.C. Had categorically supported the supplementary statement of the complainant whereby they burdened accused Muhammad Tariq, Aitbar Khan, Muhammad Riaz and Habib Ullah with the same role in place of Nazar Khan, Malik Khan, and Muhammad Irfan (petitioner); Muhammad Hanif, Muhammad Ijaz P.
Ws. Drivers of the vehicles have contended in their statements under section 161, Cr.P.C. That the crime was committed by some unknown accused and they did not nominate the accused- petitioner or any of the accused mentioned in the F.I.R. As the assailants; the previous enmity between the parties is admitted and only a joint and divergent role has been assigned to the petitioner-accused; the order through which, accused Aitbar Khan and Muhammad Riaz had been admitted to bail are still intact and have not been assailed by the complainant before any forum, so the petitioner having an identical case deserves the same treatment on the dictum of consistency; the complainant and injured P.Ws., five in number, recorded their statements under section 512, Cr.P.C. Before the Anti-Terrorism Court, Rawalpindi wherein they followed the attributions made in the supplementary statement of the complainant and shelved the story of the F.I.R. Pertaining to the accused-petitioner.
5. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has strenuously opposed the grant of bail to the petitioner with the contention that the petitioner is named in the F.I.R. With a specific role that he along with his co-accused being armed with Kalashnikovs resorted to reckless firing at the vehicles of the complainant side and committed carnage by having killed as many as seven persons and almost killing another four as they too, received multiple firearm injuries on their bodies; the role of the petitioner is not at par with that of Aitbar Khan and Muhammad Riaz accused as the complainant had not burdened them with specific liability in the F.I.R.; the supplementary statement of the complainant is of no value and the petitioner cannot harvest any benefit out of the same for the reason that it did not have the acceptance and recognition of law; the petitioner absconded after the occurrence and was arrested after more than two years of the occurrence and being a fugitive from law he is not entitled to the relief prayed for; the role of the petitioner is distinctly separable from the role of the co-accused Aitbar Khan and Muhammad Riaz so he cannot ask for equity of treatment; the trial has commenced and three prosecution witnesses have already been recorded by the learned trial Court. Relies upon "Mudassar. Altaf v. State" (2010 SCJ 504), "Shoukat Ilahi v. Javed Iqbal and others"
(2010 SCM R 966), "Sardar Munir Ahmad Dogar v. The State" (PLD 2004 Supreme Court 822) and "Ghulam Sarwar v. The State" (2010 M LD 680).
6. Learned counsel for the parties have been heard and the relevant record has been gone into.
7. Still intact and have not been assailed by the complainant before any forum, so the petitioner having an identical case deserves the same treatment on the dictum of consistency; the complainant and injured P.Ws., five in number, recorded their statements under section 512, Cr.P.C.
Before the Anti-Terrorism Court, Rawalpindi wherein they followed the attributions made in the supplementary statement of the complainant and shelved the story of the F.I.R. Pertaining to the accused-petitioner.
5. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has strenuously opposed the grant of bail to the petitioner with the contention that the petitioner is named in the F.I.R. With a specific role that he along with his co-accused being armed with Kalashnikovs resorted to reckless firing at the vehicles of the complainant side and committed carnage by having killed as many as seven persons and almost killing another four as they too, received multiple firearm injuries on their bodies; the role of the petitioner is not at par with that of Aitbar Khan and Muhammad Riaz accused as the complainant had not burdened them with specific liability in the F.I.R.; the supplementary statement of the complainant is of no value and the petitioner cannot harvest any benefit out of the same for the reason that it did not have the acceptance and recognition of law; the petitioner absconded after the occurrence and was arrested after more than two years of the occurrence and being a fugitive from law he is not entitled to the relief prayed for; the role of the petitioner is distinctly separable from the role of the co-accused Aitbar Khan and Muhammad Riaz so he cannot ask for equity of treatment; the trial has commenced and three prosecution witnesses have already been recorded by the learned trial Court. Relies upon "Mudassar. Altaf v. State" (2010 SCJ 504), "Shoukat Ilahi v. Javed Iqbal and others"
(2010 SCM R 966), "Sardar Munir Ahmad Dogar v. The State" (PLD 2004 Supreme Court 822) and "Ghulam Sarwar v. The State" (2010 M LD 680).
6. Learned counsel for the parties have been heard and the relevant record has been gone into.
7. Still intact and have not been assailed by the complainant before any forum, so the petitioner having an identical case deserves the same treatment on the dictum of consistency; the complainant and injured P.Ws., five in number, recorded their statements under section 512, Cr.P.C.
Before the Anti-Terrorism Court, Rawalpindi wherein they followed the attributions made in the supplementary statement of the complainant and shelved the story of the F.I.R. Pertaining to the accused-petitioner.
5. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has strenuously opposed the grant of bail to the petitioner with the contention that the petitioner is named in the F.I.R. With a specific role that he along with his co-accused being armed with Kalashnikovs resorted to reckless firing at the vehicles of the complainant side and committed carnage by having killed as many as seven persons and almost killing another four as they too, received multiple firearm injuries on their bodies; the role of the petitioner is not at par with that of Aitbar Khan and Muhammad Riaz accused as the complainant had not burdened them with specific liability in the F.I.R.; the supplementary statement of the complainant is of no value and the petitioner cannot harvest any benefit out of the same for the reason that it did not have the acceptance and recognition of law; the petitioner absconded after the occurrence and was arrested after more than two years of the occurrence and being a fugitive from law he is not entitled to the relief prayed for; the role of the petitioner is distinctly separable from the role of the co-accused Aitbar Khan and Muhammad Riaz so he cannot ask for equity of treatment; the trial has commenced and three prosecution witnesses have already been recorded by the learned trial Court. Relies upon "Mudassar. Altaf v. State" (2010 SCJ 504), "Shoukat Ilahi v. Javed Iqbal and others"
(2010 SCM R 966), "Sardar Munir Ahmad Dogar v. The State" (PLD 2004 Supreme Court 822) and "Ghulam Sarwar v. The State" (2010 M LD 680).
6. Learned counsel for the parties have been heard and the relevant record has been gone into.
7. It has been categorically alleged by the complainant in the F.I.R. That Muhammad Irfan (petitioner) along with his co-accused Malik Khan and Nazar Khan being armed with Kalashnikovs, sprayed volleys of bullets at the victims with community of intention which caused the death of Muhammad Yaqub, Muhammad Ilyas, Khalid Saeed and Muhammad Nasir. The complainant did not stick to his version as contained in the' F.I.R. And he rather _rushed into making a supplementary statement on the same day wherein he entirely changed the role attributed to as many as five accused, Aitbar Khan, Muhammad Riaz, Nazar Khan, Malik Khan and Muhammad Irfan (petitioner). By way of his supplementaryIt has been categorically alleged by the complainant in the F.I.R. That Muhammad Irfan (petitioner) along with his co-accused Malik Khan and Nazar Khan being armed with Kalashnikovs, sprayed volleys of bullets at the victims with community of intention which caused the death of Muhammad Yaqub, Muhammad Ilyas, Khalid Saeed and Muhammad Nasir. The complainant did not stick to his version as contained in the' F.I.R. And he rather rushed into making a supplementary statement on the same day wherein he entirely changed the role attributed to as many as five accused, Aitbar Khan, Muhammad Riaz, Nazar Khan, Malik Khan and Muhammad Irfan (petitioner). By way of his supplementaryIt has been categorically alleged by the complainant in the F.I.R. That Muhammad Irfan (petitioner) along with his co-accused Malik Khan and Nazar Khan being armed with Kalashnikovs, sprayed volleys of bullets at the victims with community of intention which caused the death of Muhammad Yaqub, Muhammad Ilyas, Khalid Saeed and Muhammad Nasir. The complainant did not stick to his version as contained in the' F.I.R. And he rather _rushed into making a supplementary statement on the same day wherein he entirely changed the role attributed to as many as five accused, Aitbar Khan, Muhammad Riaz, Nazar Khan, Malik Khan and Muhammad Irfan (petitioner). By way of his supplementary statement, the complainant made specific attributions to Aitbar Khan and Muhammad Riaz accused and let off Nazar Khan, Malik Khan and A Muhammad Irfan accused. So far as the change of roles of the mentioned accused was concerned, it must be at the back of the mind of the complainant as to how and under what circumstances, he improved upon his earlier version under section 154, Cr.P.C. And it was why he chose to burden off the above-named three accused, including the petitioner. It has been held time and again by this court as well as by the apex Court of the country that a supplementary statement is a recent innovation, not recognized by law, which has been devised by incompetent, incapable and dishonest police officers/1.0s. To cut short the process of investigation without hearing in mind that such a short cut is generally destructive to the case of the prosecution. This practice of manufacturing and fabricating the supplementary statements continues unabated which has to be checked by -some drastic measures. Till the time, the police high-ups and the authorities at the helm of affairs wake up and perceive horrendous consequences caused by such innovation, the unbridled powers enjoyed by the police would do more harm instead of doing good to the oppressed. Here in this case, barring the supplementary statement, the complainant and the injured P.Ws., Khalid Mehmood, Sajid Akhtar, Tanvir Aslam, Najaf Raza and Gul Jahan appeared before the learned trial Court on 19-7- 2008 and recorded statement under section 512, Cr.P.C. Wherein they all followed the changed/improved version of the complainant as underlined by him in his supplementary statement. This is a million dollar question for the prosecution to answer as to which of the attributions, one in the F.I.R. And the other in supplementary statement C or in the statement under section 512, Cr.P.C., was correct or believable against the accused-petitioner. This fact alone is sufficient to bring the case of the petitioner within the scope of further inquiry as envisaged under section 497(2), Cr.P.C.
8. So far as the allegation of abscondence against the petitioner is concerned, there is no cavil to the proposition that a fugitive from law who cannot offer any explanation for his long standing abscondence/disappearance, loses some of his normal rights guaranteed under the substantive law as well as the procedural law. Once the court comes to the conclusion that the case of an accused falls within the ambit of further inquiry into his guilt, the alleged abscondence cannot impede the grant of bail to the accused.
9. So far as the commencement of the trial and the fact that three prosecution witnesses have been recorded is concerned, it has been brought to the notice of this court that after the arrest of a few more accused in this case, the de novo trial has started before the learned trial Court. It has been held by the august Supreme Court of Pakistan in PLD 1989 SC 585 that commencement of trial is no ground to refuse the bail to an accused, if his case is otherwise covered by section 497(2), Cr.P.C. As it necessarily relates to the legal right of the accused. Only three formal prosecution witnesses have been recorded so far and the conclusion of the trial is not expected in a foreseeable future. The petitioner, in the attending circumstances, cannot be denied his legitimate right of seeking release on bail, once he has been entitled thereto.
10. For the foregoing reasons, I accept the instant petition and admit the petitioner (Muhammad Irfan) to post-arrest bail subject to furnishing bail bonds in the sum of Rs,2,00,000 each, with two sureties each in the like amount to the satisfaction of the learned trial Court.