' MUHAMMAD SALEEM JESSAR, J.---Through instant application, applicant Moula Bux Khatian seeks pies release on post arrest bail in Crime No,250/2015 registered with Police Station Kazi Ahmed for the offences under sections 302, 377, 34, P.P.C. The applicant/accused preferred such bail plea before the Court of learned Sessions Judge, Shaheed Benazirabad through his Bail Application No,13/2016 and he vide his order dated 06.02.2016 declined the same giving rise to file instant application before this Court. The case, as reported has already been challaned by the police on 23.12.2015 and same is now pending for trial before the Court of learned 3rd Additional Sessions Judge, Shaheed Benazirabad vide S. No,130/2016 Re: State v. Moula Bux and others.
2. Brief facts of the prosecution case as unfolded in FIR No,250/2015 lodged by complainant Wazir on 15.10.2015 are that he is labourer and having one son namely, Sardar aged about 13/14 years, who was studying in 3-Class. On 09.10.2015, his son Sardar went to take tea at Loung Soomro Stop Hotel at 04.00 p.m. But did not return. Thereafter, he and his cousin Ghulam Hussain and Ghulam Mustafa went together in search of his son Sardar. On 10.10.2015 at 0600 hours of the morning, they learnt that a dead body is lying under tree at lands of Ranjho Chandio. They went and saw that it was his son's corpse, who was strangulated from his neck with the tap of shalwar. The shalwar was also folded. They further noticed that sodomy was also committed with him and found foot prints of four persons at the spot; out of them, three were naked and one was with chapel. They traced the foot prints with the help of Tracer but same went disappear in the lands of Shabbir Soomro because of dried land. The dead body was shifted to Rural Health Centre, Qazi Ahmed and his autopsy was conducted and subsequently, was buried. The complainant remained busy in receiving the condolences and after about six days, he got registered present FIR against four unknown persons alleging therein that they have committed sodomy and murder of his son by dragging and strangulating him.
3. It is contended by Mr. Khalid Saeed Soomro, learned counsel for the applicant/accused that name of applicant Moula Bux was not transpiring in FIR and the case, after thorough investigation, was disposed of by the police under untraced class. He further submitted that all of sudden on 02.12.2015, the complainant recorded his "further statement" whereby he had implicated the present applicant and "further statement" cannot be equated with FIR nor can be treated evidence against him. He further submitted that the complainant has also not disclosed source of his information on which basis the present applicant Moula Bux was involved. He further submitted that .In any way even the contents of statement of the complainant may be presumed to be true even then applicant/accused has committed no offence, which may entail the punishment with death, life imprisonment, imprisonment for life or imprisonment of seven (07) years.
4. Learned counsel submitted that present FIR was lodged by the complainant on 15.10.2015 and his further statement was recorded on 02.12.2015 i,e, the delay of about 47 days for which, no plausible explanation has been furnished by the complainant. He further submitted that statements of PWs.
Ghulam Mustafa son of Rahib Khan Rahu, Ghulam Hussain son of Gulab Khan Khatian under section 161, Cr.P.C. Were recorded on 02.12.2015 whereby they have taken the name of applicant along with others but have not justified their earlier version and delay so caused. He further drawn attention of the Court at Page-39 of the application, it is statement under section 162, Cr.P.C.
Recorded by the complainant before the police on 06.01.2015 whereby he has also arrayed one Usman Rind on the ground that he was also accompanied to other accused in connection with above crime. Learned counsel further submitted that present applicant was arrested on 02.12.2015 after, recording further statement of complainant. He has further drawn attention of the Court towards page-53. It is the mashirnama of recovery of the Mobile phone of deceased Sardar Khatian. During interrogation; I.O. Had received the cell phone of deceased Sardar Khan Khatian at the pointation of co-accused Ali Gohar Qazi Ahmed. He further submitted that said Bashir Mahar was not arrayed as an accused in this case nor was made as witness in the case. He in support of his contention has placed reliance upon 2007 YLR 323, 2008 SCMR 173, 2008 SCMR 1556, 2007 PCr.LJ 1981, 2011 SCMR 161, 2012 PCr.LJ 625, 2013 MLD 1214 and 2013 MLD 1115.
5. Syed Shafique Ahmed Shah, learned counsel on behalf of complainant submitted that although ample evidence was collected against accused as Mobile phone of deceased was recovered on the pointation of accused and was sealed by the police officer, but the complainant is present in Court and has sworn affidavit before the court to the effect that due to outside Court settlement he has no objection for grant of bail, the affidavit sworn by complainant is available and is taken on record.
6. On the other hand, Mr. Shahzado Saleem Nahiyoon, learned A.P.G. Sindh appearing on behalf of the State has extended his no objection on the ground that nothing incriminating was found from present applicant besides the complainant has filed his affidavit before this Court.
7. Heard arguments. Perused record, law citations as well, with able assistance of learned counsel for the parties.
8. Admittedly the alleged offence is un-witnessed and none had seen while its happening. The FIR is delayed for about six days despite fact none including present applicant was nominated. Other glaring feature of prosecution case is, there are two further statements. In his first further statement dated 02.12.2015 the complainant had implicated three persons namely, Ali Gohar, Ali Jan and Moula Bux as an accused. Whereas, in his second further statement dated 06.01.2016 complainant had arrayed one Usman Rind as an accused in this case. Apparently further statement is delayed for 53 days from incident and 47 days from the FIR but no plausible explanation has been furnished by the prosecution for such an inordinate delay. It is well-settled principle of law that "further statement/supplementary statement" of the complainant recorded during investigation is not equivalent to the FIR nor it can be equated with FIR. "Supplementary statement" has no evidentiary value as it was an innovation and not recognized by law. Even under the scheme of Criminal Procedure Code of 1898, nowhere it has been provided that informant should record second version during investigation in shape of further statement beyond the scope of section 154, Cr.P.C.
Such behavior and conduct of prosecution while discharging its legal duties had cast serious doubt upon the veracity of prosecution evidence, which prima facie entitled to applicant with concession of bail.
9. Since co-accused Usman Rind has been granted extra ordinary relief in shape of pre-arrest bail, the case of applicant is also identical to that of co-accused Usman and nothing incriminating has been shown to have been recovered from his possession. Thus propriety of law demands that D constant treatment should be extended in favour of the applicant/accused as law of parity is very much attracted. Moreover, the person from whose possession the alleged cell phone of deceased Sardar Khan Khatian was recovered had not been arrayed as an accused or witness in this case.
Said Bashir Mahar had also not disclosed before Investigating Officer that cell phone of deceased was purchased from present applicant. In the circumstances, I am fortified with the esteemed dictums of Hon'ble Supreme Court of Pakistan in case of 'nal& Javed and another v. The State' vide 2003 SCMR 1419 and identical view taken by Division Bench of Lahore High Court in case of Anees- ur-Rehman and another v. The State' vide PLD 2002 Lahore 110.
10. For whatever has been discussed hereinabove and in view of no objection extended by the complainant as well as learned A.P.G. Sindh for the State and the law citation (supra), case against the applicant Moula Bux requires further inquiry as required by section 497(2), Cr.P.C. Consequently, instant application is allowed.
10(sic). The applicant was granted bail on furnishing solvent surety in the sum of Rs,1,00,00/- (Rupees one hundred thousand) and PR bond in the like amount, to the satisfaction of learned trial Court by my short order dated 09.09.2016 and these are the reasons for same.
11. However, the observations made hereinabove are tentative in nature and may not influence learned trial Court while deciding the case on merits.