' This criminal bail application has been filed under section 497, Cr.P.C. Praying for grant of bail to the applicant/accused pending trial.
' The brief facts, as per FIR., are that the complainant Ali Abbas, who is an employee in the Office of Director Anti-Corruption as Naib Qasid, stated in his complaint that on 19-6-1995 at about 1.00 p.m.
While he, along with his uncle Ali Bux, who is also employed as Naib Qasid, were going from Sabzi Mandi to their home, when they reached in front of Baghpati Petrol Pump, a Suzuki Mehran car of grey colour, appeared from behind and stopped near them. They saw Azizullah, Manzoor and Shahzad coming out from the said car while the fourth person, Shaan, kept sitting in the car. These persons had enmity with the complainant and his family. One of the three persons, namely, Azizullah, fired at his uncle Ali Bux and the bullet hit him on the right side injuring the said Ali Bux, who fell down immediately and died in the taxi before reaching the hospital. There were other people also who saw the incident. A complaint under section 302/34, P.P.C. Of Qisas and Diyat Ordinance was lodged against all the four accused and F.I.R. No,82 of 1995 was lodged. Challan was submitted after about six months and all the accused persons were placed in Column No,2 of the Challan. The main accused, Azizullah, was arrested subsequently while other three persons were declared absconders.
2. The learned counsel for the applicant stated that the present applicant/accused left Pakistan on 11-7-1995 having no knowledge of the said F.I.R. Against him as he worked in Saudi Arabia. He came to know about the pending cases against him when he arrived in Pakistan on 12-11-1997 and immediately applied for protective bail which was granted to him by this Court. But the bail application moved before the trial Court was dismissed and the applicant/accused was arrested/taken into custody on 20-12-1997. '
3. The contention of the learned counsel for the applicant/accused is that there is a delay in lodging F.I.R. And there are improvements and contradictions over the F.I.R. As compared to the present case and, as such, the applicant/accused is entitled to bail. He relied on the case of Mooso v. The State (1996 PCLU 361).
4. His next contention was that no role has been assigned to the applicant/accused in the F.I.R. And no recovery of arms and ammunition was made from him and on this point also the applicant/accused is entitled to bail. In support of his contention, he relied on the case of Muhammad Sadiq and another v. The State (1996 SCM R 1654); Abdul Ghaffar v. Munir and 4 - ethers (1981 SCM R 504). He further argued that interim bail was granted to the accused by this Court relying on the case of The State v. Malik Mukhtar Ahmed Awan (1991 SCM R 322) as the presence of the complainant and the accused on the site where the incident took place, was doubtful. But even this point was not considered by the trial Court.
5. On the other hand, Mr. Jawaid Akhtar, the learned counsel appearing on behalf of the State, opposed the grant of bail application as, according to him, name of the accused is mentioned in the F.I.R. Along with the main accused Azizullah. Further, under section 34, P.P.C., common intention is to be established which has been established through F.I.R. According to him, delay in lodging the F.I.R. Is only about three hours which happens in such cases as the complainant first had to take the injured to the hospital and then only to lodge complaint and the police had to reach hospital and complete several formalities before lodging an F.I.R.
6. I have heard both the counsel and have perused the record. Certainly, there are some unexplained events and part of the statement which are beyond comprehension. At the relevant time, the complainant was walking ahead of his uncle. In the circumstances, it is strange that he saw the car from behind and the three accused getting down from the car while the fourth kept sitting. But his statement to the extent that after hearing the shot he turned back and saw Azizullah with gun in his hand can be acceptable. Again in of the fact that the complainant and the deceased were on leave from office on the day of incident both of them went to office but remained outside for more than an hour discussing something and went back home remain to be explained. While the statement of the complainant is that he took his uncle in the car to the hospital but in the F.I.R. It is reported that he took his uncle in a taxi, but he died on the way. The reports are on the record that the said Ali Bux was taken to the hospital by the police where he was declared dead and that the police inspected the dead body and prepared memo. Of inspection and got his signatures on the basis of which F.I.R. Was lodged. In his statement, the complainant admitted that he can note down time as he has a clock in the house but he took the plea that he could not take down the number of the car as he is uneducated. Again, first he showed his ignorance in regard to the suggestion that Mst. Azeema wife of Ali Bux has received compensation for the murder of her husband on the ground that he was killed by unknown persons and then voluntarily added that it is possible that she might have got compensation. The receipt of compensation on record confirms the payment to the widow of the deceased. The deposition of the complainant recorded on 27-8-1997 also indicates that he was a difficult witness and was uncomfortable when cross-examined. The deposition of the witness/complainant becomes doubtful because of the above circumstances. Besides, copy of the muster roll filed by the counsel indicates that the complainant was available in the office on the particular date. Further, in the F.I.R., although he had stated that there were many people who had gathered at the place of incident, but he could not give even a single name nor he could give reason for not giving any names in the F.I.R. While the complainant denied the suggestion that the dead body was brought to the hospital by one Hamid, copy of the Roznamcha at Police Station clearly reveals that the body of the deceased was brought to the hospital by one Hamid Ali.
7. The contention of the learned counsel for the applicant/accused that the above facts clearly indicate that the complainant who is the only eye-witness, and on whose evidence the applicant/accused has been arrested and the case is proceeding, was not present at the relevant time and if his deposition as an eye-witness is discarded, then there is nothing left on the record against the present applicant/accused and the case of further inquiry is established and the applicant/accused is entitled to bail, has some force.
8. But, the explanation given by the applicant/accused that he was not aware of the proceedings while the family remained and lived in the same Goth cannot be accepted and it establishes that he absconded. The applicant's deposition has not been recorded as yet and he is still to stand the test of cross-examination.
9. Now, coming to the case-law relied on by the learned counsel for the applicant in support of his contentions:
(i) In the case of Muhammad Sadiq and another v. The State the accused were charged under sections 302/324/148/149, P.P.C. Wherein no injury was caused to the complainant party. It was held that the allegation of 'Lalkara' against the petitioner is proverbial and since the petitioner, although armed with pistol and rifle, did not cause any injury to the complainant party, the petitioner was admitted to bail. The contention of the learned counsel is, that in the present case also since no role has been assigned to the applicant/accused, he is entitled to bail.
(ii) In the case of Abdul Karim alias Raja and another v. The State (1996 PCr.LJ 503), the case was registered against the accused under sections 365-A/149, P.P.C. And section 173, wherein the complainant, in spite of the fact that he had knowledge of the names of the culprits, did not mention the same in the F.I.R. And no action was taken by the police for about six months. It was held that "in the present case as pointed out above, it is neither an error, omission nor irregularity in his report but it is a matter of non-submission of the reported self which account to violation of provision, and therefore, the trial can be said to have been vitiated" and in view of above it was held that the prosecution has failed to prove its case.
(iii) In the case of The State v. Malik Mukhtar Ahmed Awan, it was held that the rule that the fugitive of law should under no circumstances, be Enlarged on bail although abscondence does constitute a relevant factor when examining question of bail, is not absolute rule.
' In the said case, F.I.R. Was lodged against the respondent under sections 302/307/149/148/120-B.
(iv) In the case of Shamsuddin, Mir Jat v. The State (1996 SCM R 382), relied upon by the learned counsel for the applicant/accused it was held as under:-- "The admitted position remains that the applicant did not cause any injury to the deceased but he caused injury to P.W. Mazan. There is conflict between ocular and medical evidence. Bai' does not mean acquittal and it will remain open for the trial Court to come to any conclusion on the basis of evidence recorded during trial proceedings but so far as the question of bail is concerned, as there is scope of further inquiry, I grant him bail.....
(v) In the case of Abdul GhLitar v. Munir and 4 others (1981 504), it was held that the granting or rejecting of bail being a matter within the discretion of the Court exercising it, this Court will not interfere with the exercise either way, unless it be shown either that it was not exercised judicially or its exercise was perverse, resulting in miscarriage of justice.
Admittedly no role has been assigned to the applicant/accused in the F.1.R. And the above contradictions, improvements an certain unexplained events are in favour of the applicant/accused. The fact that there is enmity between the parties and as such the applicant/accused was falsely involved, can be plausible. Although the muster roll has not been produced and exhibited during the trial but it reflects the presence of the complainant in the office and makes the statement of the complainant doubtful that although he and deceased Ali Bux went to the office on the day of incident but did not enter the office. The case of the applicant is further supported by the very fact that the widow of the deceased Ali Bux has received compensation for the loss of life of her husband in a case registered at P.I.B. Police Station wherein it was stated that some unknown persons killed the deceased. In view of the above, the cadge is of further inquiry.
' However, any observation made hereinabove, will not affect the proceedings before the trial Court. In the circumstances, applicant/ accused is admitted to bail subject to furnishing surety in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.