' MUHAMMAD ALI MAZHAR, J.---By this common order, I intend to dispose of both aforementioned bail applications arising out of Cr. No,107 of 2011, lodged at Police Station, Kandhra under sections 302, 34, 337-H(2), P.P.C.
2. On 20-9-2011, the complainant Moula l3ux Panhyar lodged F. I ,R . As under:-- "Complaint is that Aijaz Hussain aged about 29/30 years was my son. I have cattle which I and my son Aijaz Hussain use to graze. On 19-9-2011, I, my son Aijaz Hussain and relative Nawab Ali went together towards the Pir Alam Sher Jeelani for grazing the cattle. My son Ayaz Hussain came there for cutting grass. At evening time about 5-00 p.m, three persons came from the eastern side, their faces were opened, and one person was armed with gun and two persons having pistols in their hands. They suddenly raised Hakal and called upon us that Aijaz Hussain is crazy and today his madness will end and he will be murdered. On hearing this son Aijaz Hussain started running towards the western side to save his life. The person who armed with gun made a straight fire which hit Aijaz Hussain on, his backside that after receiving gunshot he fell down by raising cries.
The accused persons went away towards eastern side by making aerial firing, then I and above witnesses saw the Aijaz Hussain sustained injuries on the backside which was through and.
Through and blood was oozing and he died in front of us. After the postmortem of my deceased.
Son I brought the dead body at my house. Today after burial I have come at the P.S. Kandhra and complain that three unidentified persons with their common intention on unknown enmity committed the murder of my son and have made aerial firing in order to harass. I and above mentioned P. Ws. Have seen the accused persons clearly and they would be identified if seen again".
3. The learned counsel for the applicants argued that neither the names of the applicants are mentioned in the F.I.R. Nor their features or descriptions. It is also a matter of record that both the applicants were previously known by the complainant but their names were not mentioned by the complainant in the F.I.R. The applicants were implicated on account of statements of P.Ws.
Recorded under section 161, Cr.P.C. On 4-10-2011. Though P.W. Nawab Ali given the names of applicants in his .161, Cr.,P.C. Statement but in his statement recorded under section 164, Cr.P.C. ,'he did not disclose the names of any accused persons and stated that accused will be identified if come before him. Similarly P.W. Ayaz in his statement recorded under section 164, Cr.P.C. Stated that all three accused were the friends of his deceased brother they used to graze the cattle and he further stated that prior to the incident, his father, brother and all three accused used to graze the cattle together. .He never disclosed the name of the applicants till 6-10-2011. The learned counsel argued that there is at least 15 days delay in recording of statements under section 161, Cr.P.C. Without any plausible explanation. It was further averred that on 14-10-2011 police recorded the statements of two more independent witnesses who are real sons of complainant who implicated two other persons namely Ghulam Murtaza and Fayaz Hussain. Finally the learned counsel concluded that the case against the applicants falls within the purview of further inquiry. In support of his arguments the learned counsel relied upon 2012 YLR 515 Muhammad Mithal v. State, in which the court held that neither accused was named nor his descriptions were given in the F.I.R.
Complainant and accused were caste-fellows. The name of the accused was disclosed by two witnesses in their statements recorded under section 161, Cr.P.C. After three days of registration of F.I.R. The case of the accused was considered to be a case of further enquiry and bail was allowed.
He next relied upon 2006 PCr.LJ 1611 Waryam v. State, in which it was held that only allegation against the accused in the F.I.R. Was his presence at the time, of murder and aerial firing. No overt act had been attributed to him. The case of accused required further inquiry with regard to the determination of his vicarious liability and sharing common intention: The learned counsel further relied upon 2005 YLR 2459 Rustam v. State, in which it was held that accused was not named in the F.I.R., the prosecution witnesses who had named accused in their statements under section 161, Cr.P.C. Had not attributed any active role to him in the commission of crime except that he was also armed with gun and was present at the spot. Case against the accused needed further enquiry which entitled, him to grant of bail. He next relied upon 2003 SCM R 426 Tahir Abbass v.
State, in which, the honourable Supreme Court held that the complainant 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 the distance of about few yards and the parties were known to each other. No explanation in this regard was available. The case of"accused was therefore of further inquiry.
Lastly the learned counsel referred to 1999 SCM R 1360 Faraz Akram v. State, in which it was held that no overt act was ascribed to the accused except ineffective firing which also stood disproved because no empty was recovered from the spot. Fatal shot was attributed to co-accused and question of vicarious liability of accused could be determined at the trial. Case against the accused thus required further enquiry as contemplated under section 497(2), Cr.P.C
4. Conversely, the learned DPG opposed the bail on the ground that the accused persons have been rightly implicated in the case and the prosecution witnesses not only assigned role to them in their statement recorded under section 161, Cr.P.C. But their names are also mentioned in the statements recorded under section 164, Cr.P.C. The learned DPG further argued that though from the statements recorded under section 164, Cr.P.C. It is clear that the allegation against the present applicants is only aerial firing but since they were present at the place of incident, hence the murder was committed with their common object and common intention.
5. Heard the arguments of the learned counsel and perused the material available on record. NO doubt that neither the names of the applicants are mentioned in the F.I.R. Nor -any description of any accused. It is also a fact that F.I.R. Was lodged on 20-9-2011 while the statements of P. Ws.
Nawab and Ayaz were recorded under section 161, Cr.P.C. On 4-10-2011; in which the names of the applicants were disclosed first time and no explanation was offered for the delay. Owing, to such unexplained delay, the possibility of false involvement/ implication present applicants cannot be ruled out.
6. In the statements recorded under section 164, Cr.P.C. Ayaz Hussain stated that accused Rehmatullah.Was' carrying gun while the present applicants Shahid and Panjal both having pistols.
The overt act attributed to Rehmatullah, who fired from his gun upon deceased on his backside and not the present applicants. It is clear that the allegation against them is only of aerial firing or ineffective firing. The same witness Ayaz during his cross-examination stated that all three accused persons had friendship with his deceased brother and they used to graze cattle together.
This statement creates enough doubt to the prosecution case that the p.w: very much knows the accused persons but he waited for a long time to implicate them and never disclosed their names to the police till the statement recorded under sections 161, Cr.P.C. And 164, Cr.P.C. The P.W. Nawab has also disclosed the same fact in his statement recorded under section 164, Cr.P.C. In his cross- examination he stated that accused Rehmatullah used to graze cattle with him and he was well- known to him. He further admitted that he knows the father of accused Rehmatullah by his name and his brother by face. He further admitted that since the date of incident and registration of F.I.R.
He did not disclose the names of any accused to the complainant. At this stage, I am of the tentative view that the implication of applicants in the crime in question on the basis of belated statements of prosecution witness creates reasonable doubts to the case of prosecution and it is well-settled that even at bail stage the benefit of doubts may be extended C in favour of accused.
7. The main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. Is that if the court on the tentative assessm ent of evidence forms an opinion that a prima facie reasonable ground existed to believe that the accused has not committed any offence with which he was being charged he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. As of right. Deep appraisal and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of the either party at the trial is not permitted and expression of the opinion on merits of the case is strongly deprecated. Courts cannot cross the barrier of permissible limits of law while making tentative assessme nt of the evidence at the bail stage. Reference can be made to 2006 SCM R 66.