' This is a reference made by the District Court of Criminal Jurisdiction Mirpur on a point of difference of opinion about a bail application submitted by two accused persons namely: Khalid Mahmood and Muhammad Mukhtar for a concession of bail in a case registered against them under section 302/34, A.P.C. The learned Sessions Judge ordered to release both of the accused on bail whereas the learned District Qazi allowed the bail application of Muhammad Mukhtar only and rejected the bail application of other accused Khalid Mahmood.
2. The precise facts giving rise to the above titled reference are that initially a F.I.R. No,114 of 1997 under section 11 of Prohibition (Enforcement of Hadood) Act, 1985 was registered by Police Station Mirpur against the person named Tariq Mahmood (deceased). This case was registered on a written report of Police Officer Aamer Nawabi. According to the said Police Officer, he was petrolling on mid-night of 4/5th May, 1997 alongwith Sabir Hussain Head Constable, Arshad Constable No,1821 and Riaz Constable No,1829. It was alleged in the aforesaid F.I.R. That during patrolling it came into the knowledge of the complainant (Aamer Nawabi) that an injured and intoxicated person was brought to District Hospital Mirpur. On this information, the complainant alongwith the police employees on 5-5-1997 at about 3-1/2 a.m. Went to the Hospital where he found Mr. Tariq Mahmood son of Muhammad Hussain Caste Jat r/o Bunkhurama (Mirpur) lying unconscious in an injured and intoxicated position. The complainant inquired the Doctor who was present there as to whether or not said person was able to record his statement. The Doctor replied in negative by saying that the person was under alcoholic effect as such he was not in a position to record his statement. On this the complainant forwarded a ' murasala' to the Police Station Mirpur where a case under section 11 of Prohibition (Enforcement of Hudood) Act was registered against Tariq Mahmood deceased.
3. On the same date i.e, 5-5-1997, another police officer of the Rank of Sub Inspector who was then Additional S.H.O. Of Police Station Mirpur visited the Hospital at about 5.30 a.m. This Police Officer with intent to record the dying declaration of Tariq Mahmood (as he was of the opinion that Tariq Mahmood was under expectation of death on account of injury) asked the Doctor to give opinion about the injured person that whether or not he was fit to record his statement. The Doctor, according to prosecution, declared the injured person to be fit for recording his statement. After obtaining a medical certificate in this regard, the police officer recorded a statement of the injured person which reads as under: {{URDU TEXT}}
4. The Additional S.H.O. Mr. Noor Muhammad Khan after recording the above mentioned statement of the injured person informed the police station through a written report on which a case under sections 324 and 337-D.F. Was registered against the accused persons Khalid Mahmood and Muhammad Mukhtar under F.I.R. No,115 of 1997.
5. On the same day another application by one Muhammad Suleman (brother-in-law of deceased) was moved to District Magistrate Mirpur for recording the dying declaration of Tariq Mahmood (deceased). The District Magistrate directed Extra-Assistant Commissioner (Magistrate 1st Class) Mirpur to record the statement. The Magistrate in compliance the order of District Magistrate recorded the statement on 5-5-1997 which reads as below:- {{URDU TEXT}} ' The Police concerned after recording the two different statements of deceased person conducted further investigation and during investigation the injured person died in P.I.M.S. Islamabad and account of "Paraplegis after a period of two weeks.
6. The case originally registered under sections 324, A.P.C. And 337-D.F. was then converted into section 302/34, A.P.C. Against the accused persons. After the expiry of the injured person, the police recorded further statements of some close relatives of the deceased under section 161, Cr.P.C., obtained post-mortem report and made some recoveries from the spot and a pistol as crime weapon was also recovered from Khalid Mahmood. The weapon by which stab wounds were inflicted on the person of deceased was not recovered.
7. The learned counsel appearing on behalf of the petitioner accused Khalid Mahmood while supporting the order of learned Sessions Judge argued that in the instant case the F.I.R. Was belated and no explanation was given which made the case against his client as doubtful. He further submitted that at the time of recording the dying declaration of the deceased, his close relatives were present and as such it loses the credibility. It was also argued on the part of Khalid Mahmood that both the statements recorded as dying declaration of the deceased contradict each other which brought the case into purview of further inquiry. The learned Sessions Judge was right to release the petitioner Khalid Mahmood on bail but the learned Qazi acted contrary to law pertaining to bail matters, the learned counsel submitted. It was also contended on behalf of Khalid Mahmood that there was no direct evidence in the case in hand and the circumstantial evidence was of such a nature which required further inquiry. The learned counsel vehemently argued that his client be released on bail as the case against him was covered by section 497(2) of Cr. P .0 .
8. As against this, the learned counsel for the complainant and learned Additional Advocate- General argued that the learned District Qazi had rightly disallowed the bail application on behalf of accused petitioner Khalid Mahmood as he was prima facie linked with the alleged offence and the case against him was covered by prohibitory clause of section 497, Cr.P.C.
9. Before answering the above reference, it is felt proper to have a tentative assessment of the evidence on record of the case. There is no direct evidence in this case. The entire prosecution story revolves around the statements (dying declaration) of the deceased. The deceased Tariq Mahmood in his earlier statement before a police officer deposed that the accused Khalid Mahmood and he both were drunk with wine (alcohol) and the deceased received bullet and knife injuries at the hands of Khalid Mahmood. In this statement there is no mention of any role or even presence of co-accused Muhammad Mukhtar. This statement was recorded by the police in presence of witnesses who are close relatives of deceased Tariq Mahmood . In the subsequent statement which was reduced into writing by the Magistrate in presence of relatives, he narrated a different story stating therein that he was picked up by the accused Khalid Mahmood and his Driver from his house at about 8- p.m. On 4-5-1997 and was taken to the house of Khalid Mahmood where he was abused and injured by Khalid Mahmood. According to this statement he received injury on account of a bullet which was fired by Khalid Mahmood. It was further stated that after receiving injury he felt unconscious. This statement shows nothing about intoxication and incised wounds on the person of the deceased. These two statements prima facie contradict each other.
10. The statement of other witness namely: Muhammad Arif compellvi (cousin of deceased)
Muhammad Suleman (Brother-in-law of the deceased). Naseem Tariq wife of deceased, Nasreen Tariq wife of deceased, Sajid Mahmood (sister's husband) and other close relatives were recorded on 29-6-1997 i.e, after one month and 25 days from the date of incidence. However, the statement of Muhammad Arif compellvi was recorded twice. Firstly it was recorded on 26-5-1997 i.e, after 21 days from the date of incidence and secondly on 29-6-1997 i.e, after one month and 25 days. Both the statements are relied on the statement of the deceased Tariq Mahmood. The subsequent statement is a detailed and exhaustive statement as compared to earlier one but nevertheless the fact remains that both the statements are based on the reported dying declaration of the deceased. According to the statement of Doctor and other relatives who were present at the relevant time, the deceased was completely in senses when he made his statement before police in the Hospital. Muhammad Arif compellvi relies his both the statements on the statement of the deceased made by him on 5-5-1997 at about 6- a.m. But both the statements prima facie contradict each other. At one hand, he deposed in his early statement that the deceased could not give details of incidence and motive behind it on account of his serious condition and on the other hand he narrated a lengthy story by basing his statement on what was deposed by the deceased on 5-5-1997 in his presence. The other P.Ws. Who happen to be the close relatives also base their statements more or less on the statement of the deceased.
11. According to the statement of Muhammad Arif Compellvi the fact that the deceased was taken away by the accused person was also known to the wife of the deceased named: Naseem Tariq who narrated the same to him on his inquiry. It is important to note here that this fact was disclosed to Arif Compellvi by this wife of the deceased Naseem Tariq after reaching back to their house. It appears from the statement of the said witness that the above referred fact was disclosed to him by the deceased himself in the Hospital in presence of Naseem Tariq on 5-5-1997 meaning thereby that she also based her statement on the dying declaration of deceased.
12. Another important factor which cannot escape the attention of the Court is that despite the statements of these P.Ws. Under section 161, Cr.P.C. The allegation of stabing the deceased was not put to co-accused Muhammad Mukhtar while examining him under section 242, Cr.P.C. The allegation regarding firing stabing and drinking were put only to Khalid Mahmood under section 242, Cr.P.C. The examination of both the accused find place at pages 58 and 59 trial Court's file.
13. The above stated facts are such which, prima facie, bring the case against the accused petitioner Khalid Mahmood under the purview of section 497(2), Cr.P.C. Which requires further inquiry and the same is only possible during trial. There are three stories as put forward by the prosecution. The first by the deceased in his earlier statement before police and the second by him while recording his statement before a Magistrate and third-one put forward by the P.Ws. who got their statements recorded after a long time. These P.Ws. In their statements under section 161, Cr.P.C. Alleged Muhammad Mukhtar co-accused to inflict injuries to deceased with dagger. They base their statements on dying declaration made by the deceased wherein there is nothing link this. This prima facie shows that under what circumstances the deceased was injured is shrouded in mystery and this probable be unearthed during trial. These three versions when read coupled with the examination of the accused person under section 242, Cr.P.C. Prima facie persuade to release accused person Khalid Mahmood on bail. Moreover, as Tariq Muhammad died two weeks after his statements were recorded, whether or not these statements qualify to be dying declaration is yet to be seen during trial. These three versions require further inquiry during trial. The co-accused Muhammad Mukhtar has already been released by District Court of criminal jurisdiction and the prosecution did not challenge the validity of the order of said Court. Therefore, I agree with the order of learned Sessions Judge and the accused-petitioner Khalid Mahmood shall be released from the custody provided he furnishes a bail bond in the sum of Rs. Five Lacs each with two sureties and personal bond in the like amount to the satisfaction of any Magistrate 1st Class at Mirpur. The reference is answered accordingly.