' The petitioners namely Muhammad Hanif, Muhammad Boota, Muhammad Nadeem, Muhammad Waseem, Muhammad Razzaq, Muhammad Rafique and Muhammad Raees while confined in Central Jail, Adiyala, Rawalpindi in a case under sections 365-A, 324, 380, 148, 149, P.P.C. Registered against them vide F.I.R. No,33, dated 28-4-1999 at Police Station Chotala, District Jhelum have moved this application under section 497, Cr.P.C. For grant of bail before this Court on refusal of the same by the trial Court.
2. The brief facts as narrated in the F.I.R. Lodged by Malik' Muhammad Shafaat are that on 27-4- 1999 at midnight time he on information given to him by Muhammad Rafique that Malik Shaukat and his nephew namely. Shahbaz who were sleeping at the roof top of the house of Muhammad Inayat were taken out of village by five persons at about 2-30 a.m. (after midnight). The said persons being armed with deadly weapons under threat of life compelled Malik Shaukat and his nephew to accompany with them and when they reached at a distance of about three miles from the village, they were identified as named in the F.I.R. The accus^d allegedly having caused fire- arm injuries to Shahbaz Ahmad, took Malik Shaukat to an unknown place. The complainant alongwith the witnesses while chasing the accused having found Shahbaz Ahmad lying in an injured condition removed him to the village to provide necessary medical aid. The motive behind the occurrence as narrated in the F.I.R. Was that Muhammad Hanif and Muhammad Boota had grudge against Malik Shaukat who was subsequently, released by the accused after taking an amount of rupees one crore as ransom money. Malik Shaukat was released by the accused on 3- 5-1999 and on the same day he while appearing before the police got his statement recorded under section 161, Cr.P.C. In which he narrated the story of his abduction and confinement in detail.
However, the victim being dissatisfied with the police investigation later filed a complaint under sections 365-A, 324, 380, 336, 148, 149, 109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 in the Special Court No,1 at Rawalpindi established under Anti-Terrorism Act, 1997. The victim namely Malik Shaukat in the private complaint stated that on 24-4-1999 the petitioners armed with fire-arms took him alongwith Muhammad Rafique and Shahbaz Ahmad with them when they were sleeping at the roof top of the house on gun-point outside the village and after reaching at some distance they fired at Shahbaz Ahmad and caused fractures of his both legs. The accused having kept the victim under constant threat to kill directed Muhammad Rafique to go to the village and arrange ransom amount of rupees one crore for the release of Malik Shaukat and while taking the complainant to the hilly area directed him to send a message to his father-in-law namely Haji Muhammad Hayat through their man for the payment of rupees one crore to them as ransom for his release till 30-4-1999 and in case the needful would not be done before the target date the abductee would be killed. The complainant on the direction of the accused sent a message in writing to Haji Muhammad Hayat for doing the needful. However, the accused extended the time for payment of amount in question till 3-5-1999. The accused remained in contact with Haji Muhammad Hayat father-in-law of the complainant to know about the arrangement of the money and ultimately on receipt of an amount of rupees one crore from Amir Mehmood brother of Malik Shaukat released him from their custody. It is stated in the private complaint that the police being in connivance with the accused party suppressed the true facts in the F.I.R. And also has not properly investigated the case. However, the statement of the complainant namely Malik Shaukat recorded by police under section 161, Cr.P.C. Contained the same facts which were subsequently introduced by him in the private complaint. Initially a case under sections 365, 324, 380, 148, 149, P.P.C. Was registered and the petitioners were allowed bail by the learned Sessions Judge vide order, dated 12-10-1999 but later on, on the addition of section 365-A, P.P.C. The forum of trial was changed from the Sessions Court to the Special Court established under Anti-Terrorism Act, 1997 and consequently the petitioners moved an application for the grant of bail before the Special Court which was dismissed vide order, dated 17-2-2000. The learned Special Judge, however, having summoned the petitioners in the private complaint directed them to submit bail bonds under section 91 of Cr.P.C. Earlier the petitioners moved a similar application Criminal Miscellaneous No,204/B of 2000 before this Court for grant of bail on the ground that they were allowed bail in the private complaint relating to the same occurrence. The bail was declined to them by this Court but a direction was issued to the learned trial Court to proceed with the trial expeditiously and make efforts to conclude the same within two months.
3. The learned counsel for, the petitioners has contended that despite direction of this Court, the trial was still at the same stage and that since earlier this Court disposed of the bail application of the petitioners on merits, therefore, they, without moving the trial Court have directly filed this application before this Court for the grant of bail. The learned counsel for the petitioners has raised the following contentions:--
(a) That the story of the F.I.R. Is in conflict to that of the story introduced in the private complaint and consequently a reasonable doubt would be created in the truthfulness of the allegation.
(b) That since the petitioners have been allowed bail in the private complaint pertaining to the same occurrence, therefore, there would be no justification to refuse bail to them in the challan case.
(c) That while keeping the story of F.I.R. In juxtaposition with the story of private complaint the reasonable grounds would exist to believe that the petitioners have not committed the offence with which they were being charged.
(d) That the prosecution story on the face of it is improbable and baseless.
(e) That unless the petitioners are found guilty of the charges in the privte complaint, the challan case against them would remain under clouds and fall within the ambit of subsection (2) of section 497, Cr.P.C. For the purpose of bail.
4. The learned counsel while summing up has submitted that in the given facts the petitioners by virtue of subsection (2) of section 497, Cr.P.C. Have earned a right to claim the concession of bail pending disposal of the case against them. The learned counsel also argued that non-conclusion of trial within the time given by this Court would create a right in favour of the petitioners to claim the concession of bail.
5. The learned counsel representing the complainant on the other hand has vehemently contended that accused were summoned in the private complaint through the procedure provided under Chapters XVI and XVII, Cr.P.C., therefore, they would not be entitled to claim hail as of right in the police case on the basis of concession of submission of bail bond given to them in the private complaint. He submitted that in the private complaint after recording the preliminary evidence if Court is satisfied that accused should be summoned, the process is issued and accused can be directed to submit bail bonds in terms of section 91, Cr.P.C. Whereas in the police case. For the purpose of grant of bail in the non-bailable cases the evidence collected by the police during the investigation is tentatively assessed and if the Court finds that there are reasonable grounds for further inquiry into the guilt of an accused, the bail is normally granted. In the present case there was ample evidence in the hand of prosecution in support of allegations of abduction and demand and payment of ransom, therefore, apparently commission of an offence punishable with capital sentence is established. The learned counsel placing reliance on Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56 contended that the bail in a case of capital punishment is always granted or refused in the light of material placed before the Court and unless the Court comes to the conclusion that there was no reasonable ground to believe that a person has committed an offence punishable with death or imprisonment for life, he would not be entitled to claim the benefit of subsection (2) of section 497, Cr.P.C. The learned counsel finally argued that since the evidence in the case is being recorded and it is expected that trial shall be concluded without consuming much time, therefore, the grant of bail at this stage to the petitioners would necessarily cause prejudice to the prosecution. The learned counsel has placed reliance on Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 587 and Allah Ditta and others v.
The State 1990 SCM R 307 in support thereof.
6. The learned State Counsel while adopting the arguments advanced by the learned counsel for the complainant has opposed the grant of bail to the petitioners.
7. We have heard learned counsel for the parties at length and perused the record. The prosecution story in the present case is divided into two parts. The first part relates to the statement of Malik Shafqat as contained in the F.I.R. And the second part was narrated by Malik Shaukat the victim of the occurrence in his statement under section 161, Cr.P.C. The events which happened during the period from the date of taking Malik Shaukat by the accused towards jungle till his release would only be either in the knowledge of the petitioners or the victim and no one else would have direct knowledge of the said events. The statement of Malik Shaukat under section 161, Cr.P.C. Was recorded by the police on his release by the accused on 3-5-1999 and perusal of the same would show that there was no material difference of said statement to the story of the private complaint.
Therefore, the omission of the facts in the F.I.R. Which were not in knowledge of first informant would not be a circumstance to suggest that the two stories were in conflict to each others. The complainant party having taken notice of partiality of police for not investigating the case on proper lines preferred to file the private complaint with introduction of additional facts which could not be made part of F.I.R. We have not been able to trace out any enmity between the parties to accept the contention that complainant party cooked a false story of abduction and release of abductee against payment of one crore rupees. The tentative assessment of the evidence in the hand of prosecution would prima facie show that there are reasonable grounds to believe that the petitioners have committed the crime with which they were being charged and would not be entitled to the concession of bail by virtue of subsection (2) of section 497, Cr.P.C. The submission of bail bonds under section 91, Cr.P.C. Upon issue of process in a private complaint under section 204, Cr.P.C. Would not be a ground to ipso facto bring the police case involving capital punishment within the ambit of subsection (2) of section 497, Cr.P.C. The case in hand being of extremely serious nature, we do not consider it a convincing ground that trial was not concluded within the time given by this Court, for grant of bail. We being conscious of the fact that the trial is in progress as the statements of the few witnesses have been recorded, the expression of opinion even on the basis of tentative assessm ent of the evidence in either way at this stage may cause prejudice to either party and, therefore, without diluting upon the matter in detail dismiss this petition.
' However, we direct the trial Court that unnecessary delay in the trial should be avoided and efforts should be made to conclude the same expeditiously.
Bail refused.
2001 P Cr: L J 1475 [Karachi] Before Faiz Muhammad Qureshi and Muhammad Musa K. Leghari, JJ MUHAMMAD PARYAL--- Appellant versus THE STATE---Respondent Criminal Appeal No,96 of 2000, heard on 22nd March, 2601.
Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(b)---Appreciation of evidence---Private Mashir of recovery mentioned in the challan had not been examined by the prosecution and no reasons had been assigned for giving him up--- Entry number was neither mentioned in the F.I.R. Nor in the Mashirnama of arrest and recovery-- Charas allegedly recovered from the possession of accused had been sent to Chemical Examiner after a delay of 24 days---Weight of the Charas mentioned in the F.I.R. Was different from its weight mentioned in the report Of Chemical Examiner---Accused was extended benefit of doubt in circumstances and he was acquitted accordingly. [p. 1478] A & B Shahid v. The State decided on 14-3-2001 (unreported); 1996 SCM R 167 and 1995 SCM R 1414 ref.
Bahadur Ali Baloch for Appellant.
Ali Azhar Tunio, A.A.-G. For the State.
Date of hearing: 22nd March, 2001.
' FAIZ MUHAMMAD QURESHI, J.--- Present appellant has called in question the judgment, dated 20- 5-2000, passed by Special Judge, Control of Narcotic Substances, Dadu in Sessions Case No,589 of 1997, whereby he has been convicted and sentenced to suffer R.I. For two years and to pay fine of Rs,1,000, in case of default the accused to suffer R.I. For one month more for the charge of offence under section 9(b) of the Control of Narcotic Substances Act, 1997. Hence this appeal.
2. The facts of the prosecution case are that on 22-8-1997 complainant Inspector Nazar Muhammad Sial lodged F.I.R. In Excise Office Dadu, stating therein that on the above date he alongwith his subordinate staff left his office for patrolling in Dadu Town, during which when he reached in Mohallah Gharibabad at about 4-00 p.m., he saw the present accused, complainant suspected the accused and took his personal search and secured Charas from his possession. On enquiry accused disclosed his name as Muhammad Parial Solangi. The Charas was weighed on the spot and its weight was 120 grams. The complainant prepared such Mashirnama in presence of E.C. Zahid Hussain Shah and Muhammad Aslam and obtained their signatures, he thereafter brought the accused and the property in Excise Office where he lodged the F.I.R.
3. After usual investigation the accused was challaned before the Trial Court for trial.
4. Charge was framed against the accused as Exh.2 and plea recorded as Exh.3 in which accused pleaded not guilty and claimed to be tried.
5. During the trial the prosecution has examined complainant Inspector Nazar Muhammad Sial as Exh.5 and the recovery Mashir E.C. Zahid Hussain Shah as Exh.6. During the evidence complainant has produced the Mashirnama of arrest of accused and the recovery as Exh.5-A, F.I.R. As Exh.5-B and the report of Chemical Examiner as Exh.5-C. Learned District Attorney closed the evidence side of prosecution vide Exh.7.
6. Statement of accused recorded under section 342, C.P.C. As Exh.8 in which he has denied the case of the prosecution.
7. The trial Court formulated the points for determination and after going through the arguments of the learned counsel for the parties and going through the evidence, adduced by the prosecution, passed the judgment in terms as above.
8. We have heard the learned counsel for the parties and have gone through the evidence of prosecution witnesses and material available on record.
9. Mr. Bahadur Ali Baloch learned counsel for the appellant has argued that the recovery of 120 grams of Charas has been made from the possession of appellant at 5-00 p.m. And yet no independent Mashir has been associated on the factum of recovery, although the name of Mashir Muhammad Aslam, who is a private person, appears in challan but he has not been examined by the prosecution in the trial Court and no reasons have been assigned by the prosecution and has submitted that in these circumstances the recovery has become doubtful. He has further argued that the property sent to Expert has been received by the Expert's office after 24 days' delay viz. 16- 9-1997. He has drawn our attention towards the difference between the weight of Charas shown in the F.I.R. As 120 grams and weight of Charas shown in the report of Chemical Examination 113 grams. He has further argued that there is no entry number mentioned in the F.I.R. And the Mashirnama of arrest and recovery and the inference can be drawn that Excise Police Party has not left the police station and false case has been foisted against the appellant on account of enmity as suggested by the appellant. In support of his contention he has placed reliance on an unreported case of Shahid v. The State, dated 14-3-2001.
10. On the other Mr. Ali Azhar Tunio learned A.A.-G. Has supported the impugned judgment and has stated that two Mashirs from Excise Police have supported the prosecution case and there was no necessity to examine private Mashir, whose name appears in the challan and he has been given up by the prosecution in the trial Court.
11. We are being fortified by the case reported in 1996 SCM R 167, 168, wherein Honourable Supreme Court held that private Mashir who has been cited in the challan by the prosecution has been given up in the trial Court without 'assigning any reason by the prosecution, adverse inference may be drawn. Had he been examined by the prosecution, he would have not supported the contents of prosecution case and in that event the benefit was to be given to the accused. We are further fortified by the authority 1995 SCM R 1414, in that case one private Mashir was examined whereas the another was police man and the Honourable Supreme Court held that no reason has been given by the prosecution as to why the private Mashir has not been examined by the prosecution and the benefit of doubt has been given to the accused. We are not satisfied with the submissions rendered by Mr. Ali Azhar Tunio, A.A.-G., while supporting the impugned judgment.
12. We have considered the arguments of learned counsel of both parties and material available on record.
13. Admittedly, there are two police Mashirs and there is one private Mashir, no reasons have been assigned for not examining him, the entry number is not mentioned in the F.I.R. Nor in the Mashimama of arrest and recovery; there is delay in sending the case property/Charas to the Expert, there is difference with regard to weight of the Charas in the F.I.R. And in the report of the Chemical Examiner.
14. Upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt. Against the appellant and we give benefit of doubt to the appellant. Conviction and sentence are set aside. In result, the appeal is allowed. The appellant shall be released forthwith if not required in any other case.