' Noor Muhammad (applicant) who is being tried by the Sessions Judge, Sukkur in Sessions Case No,112 of 2001 arising out of Crime No,17 of 2000, Police. Station Cantt. Pano Akil for offences under sections 459, 34, P.P.C. And 13-D, Arms Ordinance filed a bail application before the trial Court which was dismissed by order dated 9-8-2001. Being aggrieved by the aforesaid order, the applicant has filed this application under sections 497/498, Cr.P.C. For grant of bail.
2. In the English translation of the F.I.R. Filed by the applicant, it is alleged that at about 1-00 a.m. On 14-4-2001 complainant Faqir Muhammad was sleeping in his house alongwith P.W. Muhammad Jafar. Both of them got up on hearing some sound and found four persons in the house who were untying the buffaloes of the complainant. Out of the four persons, one had a pistol, one had a hatchet and the remaining two were carrying Lathis. The complainant did not know the intruders.
The complainant and the witness tried to catch the culprits whereupon the man with the pistol fired at the complainant hitting him in the shoulder. The two persons with Lathis caused blows to Ghulam Jafar while the other two intruders who were carrying hatchets threatened the complainant party not to come near them. On hearing the cries and the noise of the pistol fire, witnesses Suhrab, Usman and others came there who were apprised of the incident. The complainant who was injured was taken to the police station where the F.I.R. Was lodged.
3. Mr. Maqbool Ahmed Awan, learned counsel for the applicant contended that there was substantial delay of identification of the applicant inasmuch as he was arrested on 30-6-2001 while the identification was held on 9-7-2001 and referred to 1981 PCr.LJ 1225 and 1989 PCr.LJ 1123 wherein bail was granted on the ground that there was a delay of seven days and 14 days respectively between the date of arrest and the identification of the accused. He also urged that the complainant did not assign any role to the accused in the identification and as such he was entitled to the concession of bail as laid down in 1995 SCM R 127.. He further urged that the prosecution witnesses Ghulam Jafar and Suhrab have filed affidavits in the present proceedings in which they have stated that the applicant was innocent, not involved in the crime and that he has been challaned by the police wrongly which affidavits of the prosecution witnesses provide sufficient ground for grant of bail to the accused.
4. Mr. Abdul Sattar Soomro, learned State Counsel contended that there was no delay in the identification of the accused as this exercise was completed as soon as the complainant came to the police station on call by the police. Mr. Soomro contested the arguments of Mr. Awan that no role has been assigned to the accused in the identification and from documents showed that the complainant had clearly stated that the applicant had shot him in the shoulder. With reference to affidavits of the prosecution witnesses, he referred to PLD 1997 SC 347 to urge that the same could not be relied upon.
5. I have heard the learned counsel for the parties, perused the record and considered the matter.
6. The cases cited by Mr. Awan relating to the delay in identification of the accused are not applicable to the present case because in the cited cases the police had not explained the reason for the delay in holding the identification of the accused. In the present case according to the documents produced there has been no delay in having the applicant identified by the complainant. He was arrested on 30-6-2001 whereafter a notice was issued to the complainant on 2-7-2001 to appear on 5-7-2001 for identification of the accused. The complainant instead of appearing on 5-7-2001 appeared on 9-7-2001 and the exercise of identification was completed on the same day. The argument of Mr. Awan that no role was assigned is not justified as in the identification the complainant has stated that the applicant was the same person who had fired with a pistol hitting him on the shoulder. The complainant had stated in the F.I.R. That one of the four persons had shot him with a pistol and at the time of identification he unequivocally stated that the applicant was the same person who had injured him in the shoulder with the pistol. There could not better description of role played by the accused in the present circumstances. The case of Muhammad Ahmed v. The State 1995 SCM R 127 cited by the Mr. Awan is not at all applicable because in the said case more than one accused were picked up and the roles attributed to them were not stated by the witness. In the present case, the complainant has identified only one person and has also described his role i,e, injuring the complainant in the shoulder with a pistol shot. In the case of Naseer Ahmed v. The State PLD 1997 SC 347,, the Honourable Supreme Court has deprecated the trend of witnesses taking a somersault and giving statements which are different from the prosecution case by filing affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable the accused to get bail. This is apparently one of such cases wherein the prosecution witness has taken a somersault and has filed an affidavit to create a doubt in the prosecution case. The affidavits filed by witnesses Ghulam 'Jafar and Suhrab are mala fide and cannot be relied upon. Further I have perused the order dated 9-8-2001 passed by the learned Sessions Judge and do not find any illegality of misapplication of law by him.
' In view of the above, the application for bail is dismissed.