' Criminal Bail Application No. (s) 139 of 2014 (post arrest bail) on behalf of the accused/applicant Saadullah son of Muhammad Jan and Criminal Bail Application No. (s)125 of 2014 (pre-arrest arrest) on behalf of accused/applicant Asghar A.I son of Ahmed Jan were decided through common order dated 31.10.2014.
' The order was assailed to the extent of accused Saadullah before the Hon'ble Supreme Court in Criminal Petition No. 599 of 2014 (converted in Crl. A. No. 614 of 2014), whereby the Hon'ble Supreme Court remanded the case to this Court for decision afresh.
2. Brief facts of the case are that on stated date, time and place the applicant Saadullah along with absconding accused persons murdered the shepherd namely Altaf Hussain and injured another person namely Rehmatullah on their resistance during the course of dacoity. It was further alleged that they after snatching the cattle also looted the tents/houses of the complainant and the deceased, where they snatched the gold ornaments and cash from the women folk, corollary, the FIR No. 05 of 2013 under Section 396 read with Sections 147, 148 and 149 of the Pakistan Penal Code; 1860 was registered.
3. Mr. Shah Muhammad Jatoi, learned counsel at the very outset contended that besides FIR No. 05 of 2013, the applicant/accused Saadullah was also nominated in FIR No. 03 of 2013 of the Levies Thana, Bhag lodged under Sections 396, 147, 148 and 149 of PPC on the complaint of one Khamiso Khan. He contended that initially the accused/applicant was admitted to pre-arrest bail in both the cases, however, the pre-arrest bail application was rejected vide order dated 27.08.2014 and thereafter applicant was arrested, on which he filed the applications for post-arrest bail in both the cases. The learned counsel contended that in FIR No. 03 of 2013 the applicant was admitted to bail on the basis of further inquiry, but in the instant case the same relief was declined to him vide separate order of even date. He asserted that the nature of allegation, the role allegedly played by applicant and manner of both occurrences were same rather a ditto copy of each other. He contended that the learned trial Court has failed to appreciate the proposition involved in the instant case, 'because in both the cases even the defense relating to false implication was also same and both cases were argued together, but in the earlier case benefit of doubt was extended at bail stage, because no overt act was assigned to the applicant and delay in registration of FIR was considered as fatal to the prosecution's case, but in the instant case said grounds were not considered. He maintained that the course adopted by the learned trial Court is against the principle's of consistency and principles governing the law or bail. He stated that the FIR in the instant case was lodged with unexplained delay of eight hours and as many as eleven persons were nOminated with name and parentage and general allegation of firing was assigned to all of them along with one unknown person, while only one person was alleged to have succumbed to injuries due to alleged firing made by all of them and one Rehmatullah was alleged to have sustained injuries. He added that the FIR is silent about motive and no enmity was shown between the parties, however, he maintained that, admittedly there is a long-lasting tribe's feud between the 'Jatoi' and 'Rind' tribes and the applicant belongs to Jatoi tribe, while the complainant belongs to Rind tribe, therefore, on the instance of their tribe's chief, the complainant falsely implicated the applicant and his other tribes men. He stated that application for registration of FIR was handed down by the petition writer at 12.30 a.m., which in remote area like Tehsil Bhag is not possible; therefore, the delay caused in registration of FIR was due to consultation and deliberation, which creates sufficient doubt towards the veracity of the complainant's version. He finally urged that keeping in view the facts and circumstances, the possibility of false implication of applicant cannot be ruled out at this stage. He maintained that since the challan of the cases has already been submitted before the trial Court and the applicant/accused has also been shifted to judicial custody, therefore, when neither any recovery was effected from him nor he is any more required for purpose of investigation, therefore, his case falls within the ambit of further inquiry and he deserves to be admitted to bail. In support of his contention he relied upon the following cases: Tariq Bashir v. State, PLD 1995 Supreme Court. 4 Muhammad Imran v. State, 2014 P Cr. LJ 456 ,Farzan'a v. S.H.O., 2014 P Cr. LJ 460 Shahzaib Kamal v. State, 2008 P Cr. LJ 1606 Habibullah v. State, 2007 YLR 216 Muhammad Saleem 6.
State, 2007 YLR 1551 Muhammad Aslam v. State. 2010 YLR 712
4. Miss Sarwat Hina, learned Additional Prosecutor General, strongly opposed the plea of bail and contended that after submission of challan, so far, the statements of complainant and the doctor have already been recorded on 18.1.2.2014 and the trial is in progress, therefore, at this stage any observation in respect of involvement or otherwise of the applicant, may prejudice the case of either side, therefore, applicant is not entitled to be admitted to bail. She also relied on a reported judgment in Tariq Bashir v. The State, (PLD 1995 SC 34) and stated that no case of further inquiry is made out, therefore, the applicant is not entitled to be admitted to bail.
5. I have heard the learned counsel. And learned APG at reasonable length and have also gone through the record with their able assistance. On perusal of the record I observed as under:
(a) The applicant has been nominated in the FIR with specific role of firing with allegation that he along with more than five persons, conjointly committed a dacoity and murdered the deceased Altaf Hussain on his resistance during the course of dacoity and also caused fire-arm injuries to the witness Rehmatullah, therefore, everyone of them is equally liable for the offence committed by anyone of them
(b) The FIR was registered on 23.01.2013 and applicant surrendered before the Court in the month of August 2014, therefore, the unexplained abscondence of the applicant/accused can also be considered as corroborative piece of evidence, which prima facie shows his involvement towards the alleged commission of crime,
(c) After the occurrence, the investigation officer secured 35 empty cartridges of Kalashnikov and 11 empty shells of LMG (JS.), which corroborates the statement of the complainant.
(d)- Though, the motive is not alleged in the FIR but the allegation of audacity itself is sufficient to be considered as motive towards the commission of offence followed by murder of one human being and injuries caused to the prosecution witness Rehmatullah.
(e) The unnatural death of the deceased and the injuries caused to the prosecution's witnesses are not disputed, rather the same are corroborated by means of postmortem report Ex.P/2-A and medical certificate Ex.P/2- produced by PW-2 Dr. Qalandar Bakhsh.
(f) The plea of false implication raised on behalf of the applicant is self-destructive to his case as on the one hand it has been stated that there is no enmity between the parties and on the other it was asserted that there was a long-lasting triable enmity between the 'Jatoi and Rind' tribes, therefore, the applicant along with his other tribes men were nominated on instance of complainant's tribe's chief (), however, the motive being double edged weapon works in both ways and at the same time can be considered as reason behind the occurrence.
It is suffice to observe here that the substitution of culprits is not possible besides it is a rear phenomenon where a witness whose closed relative has been murdered would substitute the accused with innocent person, thereby allowing the actual accused to go scot-free. Reference is made to the case of Khizar Hayat v. The State 2011 SCM R 429.
(g) About eight hours delay in registration of FIR can be considered as reasonable and looks to be satisfactorily explained due to approximate distance of 28 to 30 kilometer in between the place of alleged occurrence and "Levies Thana Bhag, particularly, when the dead body of the deceased and injured Rehmatullah were first brought to the hospital and then the FIR was lodged.
(h) The question of recovery after arrest of the accused/applicant is of no avail, as he was neither arrested on the spot nor soon after the occurrence, but after the unexplained absconder of about 18 months, therefore, the recovery of any lethal weapon was virtually not possible. The challan in the case has already been submitted, wherein the statements of witnesses are being recorded, hence at this stage adjudication upon the grounds agitated on behalf of the applicant will amount to decide the whole case, which is not permissible under the law.
(i) The offence under Section 396, PPC relates to the audacity with murder, if anyone of five or more persons, who are conjointly committing audacity, commits murder in so committing audacity, which is non-bailable in nature,
(j) It is suffice to observe here that every criminal case has its own merits and similarity of facts of one case, particularly, in case of bail granting order cannot be used as additional ground for grant of bail in an entirely different case. Thus, the role of consistency does not apply in two different cases and this ground agitated on behalf of the applicant is not worthy of consideration.
' The bails granting order of even date passed in FIR No. 03 of 2014 has been brought in my notice by the learned counsel for the applicant, therefore, I, while exercising my supervisory jurisdiction as envisaged under Section 439, Cr.P.C. Intend to issue show cause notice to the accused/applicant and office is directed to register that matter as Suo Moto criminal revision petition, which will be decided separately.
6. Now, adverting to the precedents referred by the learned counsel I would attend the referred to citations as follows: ' The Learned counsel for the applicant as well as the learned APG, simultaneously, relied upon the case of Tariq Bashir v. The State, (PLD 1995 SC 34).
' As far as the principle of further inquiry is concerned, each and every criminal case can be brought within the preview of further inquiry and same can be considered as a reasonable ground for admission of an accused to bail, in the referred to judgment it has been held that "Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a wide difference between the jail life and free life. So, benefit of reasonable doubt about occurrence itself identity of accused, part allegedly played by him in the occurrence, his presence on the spot -and on the question of his vicarious liability, would go to him even at bail stage."
' The rest of the precedents cited by the learned counsel for the applicant, do not provide any assistance, being not applicable in the instant case, therefore, need not be discussed.
7. In view of above discussion, I am of the considered opinion that the occurrence itself, identity of the accused followed by his nomination with name and parentage, part played by him in the occurrence, his presence on the spot and all the questions of his vicarious liability, coupled with submission of challan and on oath statement of the complainant, altogether, brings me to the conclusion that no reasonable ground exists in favour of the applicant to admit him to post arrest bail, therefore, application is dismissed accordingly.
' Needless to mention here that observations made hereinabove are meant for disposal of instant application alone, which shall have no bearing on merits of the case.