' Applicant Noor Hussain son of Haji Kalomian, involved in Crime No,156 of 1992 of P.S. Korangi, registered on 24-4-1992 under section 364/34, P.P.C., seeks bail after his bail application is rejected by the learned First Additional Sessions Judge, Karachi (East) on 21-2-1993. After the arrest of the applicant offence was converted into one under sections 302, 364, 201, 202-34, P.P.C.
' The allegation in the F.I.R. lodged by Mst. Gulshan Ara Qureshi is that on 14-4-1992, one Sajid, nephew of her husband Abdul Rasheed Qureshi, came and took Abdul Rasheed Qureshi with him in his Suzuki Carry to Korangi for assistance in his recruitment in S.R.P. but thereafter Abdul Rasheed did not return. She made search for quite some days through her sons and relatives but getting no clue about her husband, she lodged F.I.R. on 24-4-1992. During investigation, it seems, Korangi Police arrested Sajid and Atiqur Rehman but they were let off under section 169 of Cr.P.C.
Subsequently, on an application by the complainant, the investigation was entrusted to C.I.A.
Police. S.I. Khaliqdad of C.I.A. Police on getting spy information on 11-12-1992 arrested the applicant and co-accused Maqsood Ahmed, and Mansoor Ahmed and Shaikh Rehmat Ali, who admitted having committed the murder of Abdul Rasheed. It also transpired during investigation that the death of deceased was caused by pistol shot injuries and then putting his dead body in a drum, thrown in a well at Mangopir and later on burnt. On the pointation of accused, the place, where the dead body was burnt, was inspected and Mangopir Police also confirmed that they had secured the dead body of unknown person on 16-4-1992 and the burial conducted through Edhi Trust. A case being Crime No,30 of 1992 under section 302, P.P.C. was also registered. Accused Maqsood gave judicial confession and statements of P.W. Sajid and Naeem under section 164, Cr.P.C. were also got recorded. It is relevant to point out that applicant and co-accused were arrested on 10-12- 1992 and judicial confession of accused Mansoor was recorded on 24-12-1992.
2. Mr. Sardar Muhammad Ishaq, learned Advocate for the applicant, has argued that except evidence of accused Mansoor, who gave judicial confession and implicated applicant, there is no independent evidence to connect the applicant with the commission of the offence and for confession, it is argued, that it is delayed and would not advance prosecution case in any manner.
It is further contended that statements of P.Ws. Mst. Shama Rahim, Muhammad Naeem and Abdul Raheem under section 161 of Cr.P.C. were recorded either on 22-12-1992 or on 19-12-1992 and 164, Cr.P.C. statements of Sajid and Naeem were got recorded on 24-12-1992. The delay in recording statements is fatal for the prosecution and it has not been shown why statements are recorded after about 8 months of the date of the F.I.R. In support of such contentions, learned Advocate has referred to (i) Muhammad Shard v. The State 1987 PCr.LJ 465, (ii) Muhammad Ikram and another v.
The State 1993 PCr.LJ 318, (iii) Mola Bux and 8 others v. The State and 2 others 1977 SCM R 292, (iv)
Abdul Sattar v. The State 1986 PCr.LJ 1056, (v) Manzoor and 4 others v. The State PLD 1972 SC 81, (vi).
Amir v. The State PLD 1972 SC 277 and (vii) Syed Saeed Muhammad Shah and another v..The State 1993 SCM R 550.
' Mr. Abdul Hakeem H. Bijarani, learned AA.-G. has opposed the grant of bail and has argued that since the incident was unwitnessed and no evidence had come forth, the case was entrusted to C.IA. Police, Karachi, who took pains to find out the culprits and there was, therefore, some delay in recording 161 or 164 Cr.P.C. statements of the witnesses. It is also contended that there is last seen evidence against the applicant and co-accused, which is furnished by P.W. Sajid, coupled with the confession of co-accused Mansoor and such evidence would be sufficient to record conviction against the applicant.
3. I have heard the learned counsel and perused the entire record. There is delay of about 10 days in lodging the F.I.R. and no plausible explanation has come for such delay. During investigation by Korangi Police, Sajid and Atiqur Rehman were arrested but they were later on released under section 169 of Cr.P.C. The Investigating Officer of this case Mr. Zafar Iqbal Chima was also called and was required to state the reason why there has been inordinate delay in recording statements of the witnesses. His reply is that because accsued Atiqur Rehman was to be arrested and some more evidence was to be collected, there has been delay in recording statements of the witnesses.
Atiqur Rebman is the same person, who was arrested earlier but released under section 169 of Cr.P.C. There is also no explanation for delay of 14 days for getting judicial confession of accused Mansoor recorded. In the case of Muhammad Sharif 1987 PCr.LJ 465, where no role was attributed to the accused and he led to the recovery of the dead body it was held that the offence fell under section 201, P.P.C. and bail was allowed. In the case of Muhammad Ikram and another 1993 PCr.LJ 318 the charge against the accused was of destruction of evidence falling under section 201 of P.P.C. which did not fall within the prohibitory clause of section 497(1) of Cr.P.C. and such accused was admitted to bail. In the case of Mola Bux and others 1977 SCM R 292, the only evidence against the accused was disclosure of his name by two other accused, which was held not admissible in evidence, the proceedings were quashed against such accused and it was held that there was no possibility of conviction being recorded against them. In the case of Abdul Sattar 1986 PCr.LJ 1056 a learned Judge of this Court granted bail to an accused in a case where eye-witnesses were closely related to the deceased and yet did not lodge report about the incident nor stated in their police statements having seen occurrence. Case of the accused in such circumstances was held of further enquiry. In the case of Manzoor and others PLD 1972 SC 81, the Hon'ble Supreme Court observed that in a non-bailable offence bail is not to be withheld as punishment. In Amir's case PLD 1972 SC 277, the Hon'ble Supreme Court observed that for the purposes of bail law is not to be stretched in favour of prosecution and benefit of doubt, if any, arising must go to accused. In the case of Syed Saeed Muhammad Shah 1993 SCM R 550, it was observed that statements recorded by police after delay and without explanation are to be ruled out of consideration.
4. In this case not only that police recorded statements of witnesses under section 161, Cr.P.C. after inordinate delay but the reason given for such delay is unsatisfactory. The reason for producing accused Mansoor for judicial confession after about 14 days of his arrest because Atiqur Rehman was not traceable is also unsatisfactory. Last seen evidence has come through P.W. Sajid, whose 164, Cr.P.C. statement is recorded on 24-12-1993 and again after inordinate delay. These circumstances make applicant's case of further enquiry and there are no reasonable grounds to believe that the applicant is guilty of the offence with which he is charged. I am, therefore, inclined to grant him bail and the applicant shall be so released if he furnishes one surety in the sum of Rs, 1,00,000 (Rupees one lac) and P.R. bond in the like amount to the satisfaction of the trial Court.