' MUHAMMAD ALI MAZHAR, J.---The applicant has applied bail in Crime No,23 of 2008, lodged at Police Station, Cantt. Pano Akil, District Sukkur under sections 302, 365-A, 324, 148, 149, P.P.C. And section 7 of ATA.
2. The applicant applied bail in the trial Court; which was dismissed vide Order dated 17-12-2011.
3. The brief facts of the prosecution case are that complainant Yaseen lodged the F.I.R. On 29-4- 2008 in which, he stated that deceased Shamsuddin was his brother and deceased Shahzado was his cousin. Today his brother and cousin both had gone to Pano Akil on their bikes for selling milk.
The complainant, his nephew and cousin had also gone to Pano Akil on motorbikes for some other work. In the evening, his brother Shamsuddin and cousin Shahzado met with the complainant in Pano Akil and leaving for their village. After some time they all were returning on their motorbikes and when they reached at Qaimdin Chacher Fish pond, they saw eleven persons and one unidentified person with Kalashnikov in his hand (the names of eleven persons are mentioned in the F.I.R.) who were standing on both sides of the road and all said persons kidnapped the complainant's brother Shamsuddiri and cousin Shahzado on the force of weapons. The accused in loud voice told that they would release the abductees after getting large amount of ransom. The complainant party raised cries, followed them and also informed their relatives on Mobile Phone.
On receiving information, the complainant's uncle and other relatives reached within short time and tried to obstruct and hinder the way of armed offenders, on which the accused persons made straight firing upon the complainant party and Allah Wassayo, Muhbat and Naseer made straight firing on Shamsuddin and accused Wazeer, Imdad and Allah Bux caused fire arm injuries to Shahzado. Both Shamsuddin and Shahzado died.
4. The learned counsel for the applicant argued that neither the name of applicant is mentioned in the F.I.R. Nor any description of alleged unknown culprit has been specified. He further argued that the name of present applicant was allegedly disclosed by P.Ws. Mansoor Ali, Wajid and Ali Akber in their statements recorded under section 161, Cr.P.C. On 10-5-2010 with the delay of eleven days after registration of F.I.R. Without any identification parade. He further argued that the applicant has been falsely involved due to enmity between Khalidi and Bullo communities.
5. On the contrary, the learned DPG opposed the bail application and argued that since the name of present applicant has been disclosed in the statements of prosecution witnesses recorded under section 161, Cr.P.C., therefore, he has been rightly implicated in the case. He further argued that sixteen injuries caused to deceased Shahzado and ten injuries to Shamsuddin. He further argued that though the name of present applicant is not mentioned in the F.I.R. But since the prosecution witnesses have implicated him, therefore, at this stage, he has no case for grant of bail.
6. After hearing the arguments and examining the material placed on record, there is no doubt that the name of applicant is not mentioned in the F.I.R. And it is also a fact that the F.I.R. Was lodged on 29-4-2008 and the present applicant has been implicated in the substitution of alleged unidentified person by way of statements recorded under section 161, Cr.P.C. On 10-5-2008, therefore, reasonable grounds exist that the name of present applicant has been implicated after due deliberation and consultation and possibility of his false involvement cannot be ruled out. It is alleged in the F.I.R. That both Wajid and Mansoor Ali were present with the complainant in Pano Akil even at the place of incident and similarly the .Third prosecution witness Ali Akber reached at the place of incident after receiving information on Mobile Phone, which makes it clear without any shadow of doubt that 'all the three prosecution witnesses were very much present at the place of incident and they have seen that unidentified person at the place of incident but they did not nominate him in the F.I.R. And took at least eleven days to acknowledge the present applicant and implicated him in their statements recorded under section 161, Cr.P.C. Which creates doubt to the prosecution case to the extent of the implication of present applicant. Learned DPG referred to a Judgment of honorable Supreme Court reported in 2010 SCM R 1861 (Mudassar Altaf and another v.
State), in which the apex Court has formulated guidelines for the courts to consider while granting bail in cases of offence punishable with death, imprisonment for life or imprisonment for ten years, which are as under:--
(i) Benefit of reasonable doubt.
(ii) Identity of accused.
(iii) Role attributed to each of accused and part allegedly played by accused in occurrence. C
(iv) His presence at spot.
(v) Question of vicarious liability.
(vi) Allegations mentioned in F.I.R.
(vii) Statements of prosecution witnesses recorded under section 161, Cr. P .0 .
'(viii) Other incriminating material collected by, prosecution. (ix) Any plea raised by accused.
7. In the aforesaid judgment, the honourable Supreme Court also observed that each and every criminal case is to be decided on its own peculiar circumstances and fact. The purpose of citing.
This judgment by learned DPG was to add emphasis that though the name of applicant is not mentioned in the F.I.R. Even though it is a fit case for rejecting the bail. In the case of honorable Supreme Court (supra), the plea was taken that the name of the petitioner was not mentioned in the F.I.R. But the name of Shahnawaz accused was mentioned, the honourable Supreme Court observed that the contents of F.I.R. Depict the name of Shahnawaz is mentioned in the F.I.R. Wrongly in the place of Shahbaz Altaf, which was rectified through supplementary statement and name of Shahbaz was inserted in the place of Shahnawaz. The facts of the aforesaid case are distinguishable to the facts and circumstances of the case in hand.
8. In the present case there was no error in the F.I.R. While describing the name of applicant but in fact there is no name of any person except an unidentified person without any description, therefore, it is not a case of correction of name. Even the guideline formulated in the aforesaid judgment, favours the ,applicant in which the foremost elements required to be considered while granting bail are the (1) benefit of reasonable doubt, (2) identity of accused, (3) role attributed to each accused, (4) his presence at the spot, (5) question of vicarious liability, (6) allegations mentioned in the F.I.R., (7) statements of prosecution witnesses recorded under section 161, Cr.P.C.,
(8) other incriminating material collected by the prosecution and (9) any plea raised by the accused.
9. Since the name of applicant is not mentioned in the F.I.R. And he has been implicated after eleven days on the basis of statements recorded under section 161, Cr.P.C., therefore, the benefit of doubt goes in favour, of the applicant and since his name is not mentioned in the F.I.R., therefore at this stage the identity of applicant in crime, role attributed to him, his presence at the spot and question of his vicarious liability requires further inquiry to prove his guilt, and there are no reasonable grounds to believe at this stage that the applicant is guilty of offence punishable with death, or imprisonment for life or imprisonment for ten years.
For the foregoing reasons, this bail application is allowed. The applicant is granted bail subject to his furnishing solvent surety in the sum of Rs,200,000 and P.R bond in the like amount to the satisfaction of the trial Court. The aforesaid findings are tentative in nature and shall not influence the case of prosecution