Accused Muhammad Imran Raja and Zaheer-ur-Rehman have sought bail in a case registered at Police Station Sukhan for an offence punishable under sections 302/397/ 109/34, P.P.C.
2. The facts of the case, as disclosed in the F.I.R. lodged by Muhammad Amin at Police Station Sukhan on 10-8-2001 at 4-30 a.m., are that at about 0345 hours his relative Muhammad Amin son of Sher Muhammad inforthed him that Ashraf was killed in his house by decoits. He rushed to the house of Ashraf where he saw that Muhammad Ashraf was lying dead. On inquiry he came to know that neighbours Imran, Zaheer, Rahman, Amjad and Dilbar Khan had entered the house for the purpose of dacoity and on resistance of Muhammad Ashraf they fired at him from pistol and killed him. He lodged report with police and four persons named 'above were arrested on the same day.
During interrogation Imran and Dilbar disclosed that they obtained the pistol from Ali Asghar; accordingly, on pointation of Imran and Dilbar the pistol was recovered from Bethak of Ali Asghar.
Five accused persons were challaned, out of them Ali Asghar was granted bail by this Court on the ground that he was involved on the basis of the version given by co-accused while in custody of police.
3. I have heard Mr. Amanullah Khan, learned counsel for applicants and Mr. Habib Ahmed, learned Assistant. Advocate-General for the State.
4. Learned counsel for applicants contended that the trial Court, while disallowing bail has observed that some material witnesses are yet to be examined, which, according to learned counsel, was not sufficient to warrant dismissal of bail plea as the other witnesses so far examined at the trial have not supported the case of prosecution. Secondly, the cognizance taken by the Court suffers from illegality owing to defect in the challan in that, the names of the witnesses are not described in the relevant column of the report under section 173, Cr.P.C. as such in view of the observations made by Lahore High Court in Mahboob Khan v. State (2002 PCr.11 340) following the observations made in Abdullah Shah v. State (PLO 1962 Karachi 633), the applicants be released on bail.
5. Mr. Habib Ahmad, learned A.A.-G. vehemently opposed the bail and submitted that the most material witnesses Mst. Nasreen wife of the deceased, who was also in the house at the time of occurrence and two other witnesses namely, Syed Imran and Abdul Rahim Shah are yet to be examined, the trial Court, therefore, was justified in refusing the bail. Regarding the defect in the challan/ report he pointed out that the relevant culumn of the challan itself mentions that the list of witnesses is appended and since such list was annexed' to the challan the requirement of section 173(1)(a). Cr.P.C. stood fully satisfied.
6. I have examined these contentions carefully. Significance of the evidence of Mst. Nasreen wife of the deceased cannot be underrated at this stage, which is of immense importance for the obvious reason that she was in the house when the incident look place and had seen the assailants while the deceased had also spoken to her. Besides, the other two witnesses are said to have seen the culprits while running away. The trial Court was, therefore, wholly justified in declining bail on the ground that the evidence of these witnesses is yet to come on record and the bail plea can only then be examined comprehensively.
7. As regards the defect in challan it may be observed that in the case of Haji Mahboob Khan (2002 PCr.LJ 340) the main drawback noticed by the Court was that the trial Court had summoned the accused placed in Column-2 of the report under section 173, Cr.P.C. mechanically without making any reference to incriminating material available against them and without justifying the said order. Undoubtedly, the facts and circumstances are entirely different the principle laid down in the cited authority would, therefore, not apply. Even in Abdullah Shah's case (supra) the compliance of clause (a) to subsection (1) of section 173, Cr.P.C. was lacking owning to the fact that the nature of information within the meaning of aforesaid clause had not been disclosed-in the requisite column. In the instant case the copy of the report annexed to this application mentions that the list of the witnesses prepared separately is appended to the report. For all practical purposes such list forms a part of the challan/report under section 173, Cr.P.C. on the basis of which cognizance is taken. Incidentally while referring to the Bail Application No,1778 of 2001 in which bail order was passed by this Court granting bail to co-accused Ali Asghar, it is noticed that the certified copy of the challan fully describes the names of 18 witnesses in the relevant column. It seems, the copying agency had correctly included the names of witnesses mentioning the same at its appropriate place. Regardless of this, the applicants have also not been fair as they have not obtained copy of the list of those witnesses which was an integral part of the challan.
8. The Courts of law would not recognize hyper-technicalities and the bail plea cannot be decided on such trivial objections. Nevertheless, it may be observed that the prosecuting agency should ensure describing the required particulars in respective columns of the prescribed pro forma and the practice of appending separate lists of witnesses should be avoided. It may be noted that under amended provision of section 173, Cr.P.C., by virtue of amendment introduced through Act XXV of 1992 police report under section 173, Cr.P.C. is to be submitted through the Public Prosecutor.
Accordingly, the Public Prosecutor will be failing in his duty if he doesn't care to notice such lapses in the charge sheet/report which may ultimately create confusion.
On the whole, the material collected against the applicants during the investigation is available with prosecution and on the basis of such material it cannot be said at this stage that there are no reasonable grounds to believe that the applicants are, prima facie, not responsbile for the offences of Haraba liable to Ta'zir or robbery/doacity coupled , with Qatl-e-Amd. The bail plea is premature and as such rejected. Consequently, the application is dismissed alongwith listed application. A copy of this bail order may be forwarded to Secretary to Government of Sindh. Law Department for issuing necessary directions to concerned Public Prosecutors to ensure strict compliance of the provisions of section 173, Cr.P.C.
10. These are the reasons for the short order announced today in Court.