Through this petition, filed under Section 497, Cr.P.0 the petitioner Abdullah seeks grant of post arrest bail in case FIR No, 250/2012, dated 05.08.2012, for offence under Sections 302, 393, PPC, registered at Police Station Chotti District Dera Ghazi Khan.
2. According to the FIR, on 05.08.2012 at about 9:00 a.m. four unknown persons waylaid Mujahid Hussain son of the complainant in order to snatch his motorcycle. The deceased resisted whereupon one unknown person fired at and caused an injury on the left side of his head. The occurrence was witnessed by the complainant, Farooq Ahmad and Zawar Hussain. The complainant with the help of eye-witnesses Farooq Ahmad and Zawar Hussain called at emergency 1122 and shifted Mujahid Hussain to Trauma Centre Dera Ghazi Khan where Mujahid Hussain breathed his last and expired.
3. The learned counsel for the. petitioner submits that the petitioner has not been nominated in the FIR. No salient features of the unknown persons have been given in the body of the FIR. No identification parade was ever held in order to establish the identity of the accused persons. The petitioner has been roped in this case on account of a supplementary statement recorded by the complainant on 06.08.2012, according to which a co-accused Akbar fired at and caused a fatal injury to the deceased. No source of information regarding the petitioner's involvement in the alleged occurrence was disclosed by the complainant or the eye-witnesses. The petitioner is previous non-convict no more required for further investigation of the case.
4. The learned Deputy Prosecutor General as well as the learned counsel for the complainant have opposed the instant petition by submitting that the petitioner has been implicated with the commission of offence on the basis of a supplementary statement recorded by the complainant on 06.08.2012 wherein it has been stated in clear terms that the petitioner has committed the offence and participated in the occurrence. Two eye-witnesses Farooq Ahmad and Zawar Hussain got their statements recorded under Section 161, Cr.P.C. on the very day of occurrence wherein they stated that they saw the petitioner alongwith other co-accused committing the offence as narrated in the FIR. They gave chase in order to apprehend all the accused persons but in vain. The petitioner is a member of a notorious gang involved in motorcycle and motor-vehicle snatching.
The petitioner who committed a heinous offence has been found to be guilty by the Investigating Officer. The petitioner has been charged with an offence which falls within the ambit of prohibitory clause of Section 497, Cr.P.C. The challan has been submitted before the trial Court on 30.10.2012, evidence of three prosecution witnesses has been recorded, hence there are no good grounds allowing bail to the petitioner.
5. After hearing the arguments which have been advanced by the learned counsel for the parties and going through the record it is clear that the petitioner has not been named in the FIR. The physical attributes or general characteristics of the accused persons have not been mentioned in the FIR. The petitioner has been implicated with the commission of offence on the basis of a supplementary statement recorded by the complainant wherein it has been stated that the complainant was aware of the identity of the accused persons. This makes the case of the prosecution one of two versions. While getting the FIR recorded the complainant never stated that he was aware of the identity of the accused persons but while getting the supplementary statement recorded on the very next day, the complainant stated in clear and unequivocal terms that he was aware of the identity of the accused persons, which would bring the case of the petitioner within the ambit of further inquiry. A perusal of the supplementary statement recorded by the complainant clearly shows that no source of information regarding, the petitioner's involvement in the alleged occurrence had been disclosed or divulged therein. It is an admitted position that no identification parade was ever conducted in this case. In such a situation the petitioner would be entitled to a grant of bail in terms of law laid down by the august Supreme Court of Pakistan in Shahid Hussain alias Multani Vs. The State and others (2011 SCM R 1673). The statements of eyewitnesses Farooq Ahmad and Zawar Hussain recorded under Section 161, Cr.P.C., on the day of occurrence are also at variance with the contents of the FIR. According to the FIR, the complainant and the eyewitnesses Farooq Ahmad and Zawar Hussain called emergency 1122 immediately after the occurrence and shifted Mujahid Hussain to Trauma Center District Dera Ghazi Khan where he subsequently expired. While getting their statements recorded under Section 161, Cr.P.0 the eye-witnesses Farooq Ahmad and Zawar Hussain stated that they gave chase and tried to apprehend all the accused persons but in vain. There is no mention of accompanying the complainant to the Trauma Centre at Dera Ghazi Khan. The deceased died on account of a single fire-arm injury which has not been attributed to the petitioner. Although the challan has been submitted before the trial Court and the evidence of three prosecution witnesses has been recorded, this factor by itself would not be sufficient to deny bail to the petitioner as has been held by this Court in Shafqat Abbas Vs. The State (2005 Y.L.R. 1588).
6. For what has been stated above, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (one lac only) with two sureties in the like amount to the satisfaction of the learned trial Court.