1. This is an application for cancellation of bail granted to respondent Arif who is involved in the case registered under sections 302/34, P.P.C. And 13-I). Firms Ordinance as Crime 32/1990 with Police Station Kashmore.
2. Briefly the facts are that complainant Yar Muhammad had lodged the said F.I.R. To the effect that there was a dispute with regard to were of deceased Abdul Rahim and that accused persons who are her brothers and father had refused to send the were of deceased, namely, Mst. Nasim to him but ultimately at the intervention of some Nekmards they had agreed and on the date of occurrence the complainant party consisting of complainant, P.Ws. Taj Muhammad and Sardar Ali were going in the Suzuki car which was being driven by the deceased to fetch his were when on the way near Boohani Phatak, there was some bumpy road and they had to slow their car, they found four persons in a car of green colour standing there who got down and signalled them to stop. As per F.I.R. The accused persons had surrounded the car. The accused were two brothers of said Mst.
3. Naseem, her father and one Bashir Ahmed of whom the present respondent No. l accused Arif had a gun in his hand who challenged the deceased firing at him which hit him and also the pellets hit dash-board and engine of the car from inside. The deceased succumbed to the injuries on the spot and the accused party then in the same car had run away. The police then after making usual investigation and paper work sent the deceased's body to the hospital where post-mortem was performed. The case was registered by the police and interim challan was produced in the Court on 9-4-1990 whereafter the same was treated as final challan. The two of the co-accused, namely, Bashir Ahmad and Sahib were let of by the police and their names are not mentioned in the challan even in column 2. Only the present respondent No.1 and co-accused Liaquat were challaned and they were granted bail by the trial Court through two separate orders. It is the bail granted to the present respondent Arif which has been challenged in this application.
4. I have heard Mr. Abdul Hakim Bijarani, the learned counsel for the applicant, Mr. Muhammad Yasin Malik the learned counsel for respondent No. 1 and Mr. Mushtaq Amir for the State.
5. It is argued by the learned counsel for the applicant that the trial Court has erred in granting bail to the present respondent No. l as there is sufficient material on the record to link the respondent No. l with the commission of the offence. According to the learned counsel there is specific allegation against the present respondent No. l of having fired at the deceased hitting him on his head which resulted in his death He has further submitted that the police at the instance of one M.P.A. Of the locality has tried to spoil the case of the prosecution by continuing the investigate the case even for a period of four months after the challan was put up and by recording statements of different people and by trying to create evidence which fact is borne from the recording of statements of some witnesses, who were not even named in the F.I.R., on 29-4-.1990 and also a police constable on 23-8-1990. The learned counsel has further submitted that at the stage of grant of bail the Court has to see whether there are sufficient reasons to believe that the accused is linked with the commission of the offence and not to sift the evidence specially the defence evidence to find out grounds for his release. He has placed reliance on the case of Fateh Muhammad v. State 1982 SCMR 910. As against this Mr. Yasin Malik, the learned counsel for respondent No. l has submitted that the police diaries will show that the F.I.R. Was registered on 15-3-1990 and on 1G-3-1990 the then S.H.O. Mr. Muhammad Bux Kellar has made an entry to the effect that he had met M.PA. Of the locality who has opined that the accused are innocent. The S.H.O. However, did not record the statement of the said M.P.A. The S.H.O. Was thereafter transferred and another S.H.O. Has made an entry in police diary on 2-4-1990 wherein he has given opinion that the case is doubtful but yet he has submitted the interim challan in Court on 9-4-1990 A similar view is also expressed by third police official named Allah Jurio subsequently. The learned counsel has placed much emphasis direction from which tile gun fire as supposed to have been made. According to the learned counsel the fire should have come from the southern direction and In that case it should have hit the other co-passenger of the vehicle which is not the fact and also pellets could not have entered dashboard and engine front inside. The learned counsel for respondent No. l has submitted that the dead body was received by the Medical Officer at mid night whereas incident had taken place at 5-30 p.m. In the evening and this delay is unexplained. He has also submitted that on 23-8-1990 a statement of police; constable was recorded who had stated that on the date of occurrence he had seen the said vehicle passing from the Kandhkot check-post at 9-30 p.m. With dead body in it and that this fact goes further to belie the prosecution case. The learned counsel has then relied on the statements of the witnesses examined by police on 29-4-1990 wherein they have submitted that at the time of occurrence the accused persons were with them and, therefore, they had been falsely implicated in the present case. H;, has placed reliance Dry the case of Muhammad Nawaz v.
6. Khan Muhammad PLD 1970 Lah. 111 and has submitted that from the above facts the case of present respondent No.1 is that of further inquiry. The learned counsel has also submitted that is the present case a direct complaint was filed by the present applicant which was dismissed by the First Additional Sessions Judge after holding P.E. On the ground that two of the accused have not been challaned by the police while the other two have already been challaned by the police. Mr. Mushtaq Ahmed Amir, the learned counsel appearing for the State has supported the application for cancellation and has submitted that one empty cartridge has been found from the Vardat and that post-mortem report also corroborates the case of the prosecution acrd the time o.
7. Occurrence. He has placed reliance on the case of Abdul Aziz v. Salch Muhammad 1990 SCMR 346 and the case of Tahir Hussain Hashmi v. State 1990 SCMR 326.
8. I have given anxious consideration to the submissions of the learned counsel. The facts as disclosed in the G.I.R. Show that at the place of occurrence where the vehicle, which was being driven by the deceased was signalled to stop, all the four accused are said to have come out of their car and surrounded the car of the deceased. Thus, it cannot be categorically said as to from which direction the fire ;vas MadL. Obviously as per the details given in the F.I.R. The fire was made at the person driving the vehicle i.e. From the driver's side, which is the right side of the vehicle.
9. There is nothing on the record to indicate as to whether the accused had fired at the deceased from front side or back side. The emphasis of learned counsel for the respondent No.1 on this point can better be resolved at the time of cross-examination of the eye-witnesses. At this stage it will not be open for the Court to ' go deeper in appreciation of such anticipated inconsistencies of evidence. It may also be observed that three co-passengers of the vehicle have fully corroborated the case of the prosecution whereas the witnesses who are examined in order to raise plea of alibi were examined 20 days after the interim challan was submitted in Court and their evidence therefore. Is to be approached with caution and cannot be straightaway accepted at this stage unless the veracity of their statements is tested at cross-examination. The post---mortem report shows that the post-mortem was started at 1-00 a.m. And the time between death and post- mortem is said to be about 6 hours which brings the time of occurrence to about 7-00 p.m. On the previous evening which is nearly the time as mentioned in the F.I.R. The Mashirnama of Vardat also shows recovery of one empty cartridge from the Vardat. The statement of police constable recorded on 23-8-1990 to the effect that more than four months back he had seen the car passing by the Kandhkot Check Post, without any such entry in the record at the check post, is obviously an attempt by the police to help accused party and amounts to a dishonest act on their part. The learned counsel for respondent No.1 has placed reliance on the case of Muhammad Nawaz wherein it was held by a learned Single Judge of Lahore High Court that the findings given by the Police Officer are very much relevant for deciding question relating to bail in murder case. There is no cavil about this legal proposition but it is not only the opinion or finding given by a Police Officer which is to be taken into consideration but the same is to be considered in juxtaposition with all other facts and circumstances. As discussed above in the present case I have already, observed that this is a case which smacks of dishonesty on the part of the police and the finding or opinion of a Police Officer in such case can hardly be taken into consideration where from very first entry made in the police diary the police appears to have been influenced by the opinion of M.P.A.
10. Without recording his statement.