IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Criminal Bail Appln. No. S- 359 of 2023.
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Applicant |
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Amjad Ali Jagirani |
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through Mr. Rafiq Ahmed K. Abro, Advocate. |
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Complainant |
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Muhammad Juman Chandio |
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(Present in person) |
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The State |
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Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Date of hearing |
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28-08-2023. |
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Date of order |
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28-08-2023. |
ORDER
SHAMSUDDIN ABBASI, J.- Through instant Criminal Bail Application, applicant/ accused Amjad Ali son of Sain Bux Jagirani seeks his admission to post-arrest-bail in Crime No.22/2023, for offence under Sections 302, 109, 120-B and 34 P.P.C, registered with Police Station Behram, after rejection of his bail plea by the learned trial Court vide Order dated 14.06.2023.
2. The case of prosecution is that on 24.03.2023 complainant Muhammad Juman Chandio lodged report with P.S Behram, stating therein that, some days back Nimano Chandio exchanged harsh words with brohter of complainant, namely, Wajid Ali aged 27/28 years, as such Nimano was threatening him. On 20.03.2023 in the night time the complainant along with his brohter Zuber Ahmed and his uncle Ali Anwar were going towards their village through fields, as such when they reached near Peeral Wah, they heard cries, therefore, they flashed the torch towards there and saw in the torchlight that by the eastern path of Peeral Wah accused Nimano, 2. Ghulam Shabir alias Foji, 3. Nazir Ahmed and one unidentified accused with open face; out of them accused Nimano Chandio was wrapping Ajrak around neck of complainant’s brohter Wajid Ali and accused Ghulam Shabir alias Foji and accused Nazir Ahmed and unknown accused were holding his arms and legs, who was struggling for life. The complainant raised cries as “murder-murder”, to which all the accused leaving brother of complainant fled away. The complainant party went near Wajid Ali and in torchlight saw that he was dead. Such information was conveyed to police through cell phone; the police taken dead body to Taluka Hospital Mirokhan and after conducting postmortem the dead body was handed over to complainant party. The complainant then consulted with his brothery people and thereafter went to police station and lodged F.I.R to the above effect.
3. Learned counsel for the applicant contended that, the F.I.R is delayed for more than four days and the explanation furnished for such inordinate delay is not plausible; that the alleged incident is said to have taken place in the dark hours of the night and the source of seeing the culprits has been disclosed as torch-light, which is very weak type of source and cannot be relied upon. Per learned counsel, neither name of applicant is appearing in the F.I.R, nor any Hulia OR descriptions of the unknown accused has been mentioned in the F.I.R and that the name of the applicant was introduced in this case through further statement of complainant and 161 Cr.P.C statements of the witnesses, which too after lapse of fifteen days of the alleged incident. Per learned counsel in further statement of complainant and 161 Cr.P.C statements of witnesses, the applicant has been assigned the role of only holding the deceased, whereas role of strangulating the deceased has been assigned to the co-accused persons. Learned counsel further contended that postmortem report of deceased does not shown marks or bruises on arms and legs of the deceased, which may prove that deceased was hold by accused persons. Lastly, learned counsel added that all these facts make the case of prosecution against present applicant highly doubtful and it also well settled principle of law that benefit of any slightest doubt even at bail stage should be extended in favour of the accused. He also added that co-accused Khinyo Khan Mugheri has been granted bail learned Court below. He further submitted that applicant is in custody since date of his arrest and no any incriminating material has been recovered from his possession and that the case has been challaned and he is no more required in this case. He prayed for grant of bail to the applicant.
4. On the other hand, learned D.P.G. assisted by the complainant has contended that applicant has been implicated in this case on the basis of further statement recorded by the complainant on 09.04.2023; that the offence is heinous one, which carries capital punishment, therefore, he is not entitled for grant of post-arrest bail.
5. Heard learned counsel for the applicant, learned D.P.G. as well as complainant and perused the material available on record.
6. Perusal of record reflects that there is delay of four days in lodgment of F.I.R without explanation and it has come on the record that F.I.R has been lodged by complainant after consultation. The specific role of strangulation has been assigned to co-accused Nimano in the F.I.R, whereas co-accused Ghulam Shabbir @ Foji, Nazeer and one un-known accused are alleged to caught hold of deceased from his arms and legs. Moreover, the alleged offence is said to have taken place in the dark hours of the night and identification is on torch light, which is always treated as weak source of identification. The record further reflects that, name of applicant is not appearing in the F.I.R; no marks of identification OR descriptions of unknown accused persons have been mentioned in the F.I.R. However, for first time his name was introduced in the case on the basis of further statement of complainant and statements of prosecution witnesses recorded in terms of Section 161 Cr.P.C, which too are recorded belatedly with role of holding the deceased from his arms and legs.
7. In case of Muhammad Rafique and others v. The State and others reported in 2010 SCMR 385, the Hon’ble Supreme Court of Pakistan has discussed the value and veracity of “further statement” and has held/ observed as under:
“As regards supplementary statement, P.W. 17 took names of 10 more accused persons from the names he took in the F.I.R, the same can be treated as statement under Section 161, Cr.P.C, that can only be used by the accused to contradict the witness. It cannot be used by the prosecution for any purpose. This improvement clearly shows that supplementary statement was made after due consultation and deliberation to falsely involve the accused. This point was examined by this Court in the case of “Falak Sher v. State 1995 SCMR 1350”, wherein it has been observed that, “any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it and the involvement of additional accused in such statement was fake improvement which made the basis for other eyewitnesses as well as for false implication”. The said rule was reiterated in subsequent decision of this Court in the case of Khalid Javed v. State 2003 SCMR 1419 and further observed that such witness would be unreliable.”
8. Similar point was examined by this Court also in the case of “SOHNO BULLO versus THE STATE 2012 P.Cr.L.J 986 (Sindh), and while granting bail to accused, it was observed that “name of accused had not been mentioned in the F.I.R and he was implicated after eleven days of the occurrence by witnesses in their statements recorded under Section 161, Cr.P.C, therefore, reasonable grounds existed that the name of accused had been implicated after due deliberation and consultation and possibility of his false involvement could not be ruled out; contents of F.I.R revealed that all three prosecution witnesses were present at the place of occurrence and they had seen the unidentified accused persons but they did not nominated accused in the F.I.R and took eleven days to acknowledge the accused and implicated him in their statements, which created doubt in the prosecution case”.
9. Furthermore, the investigation of the case has been finalized and physical custody of the applicant is no more required to police for the purpose of investigation. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
10. A tentative assessment of all the above factors and the material available on record makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the instant bail application stands allowed. Consequently, applicant Amjad Ali Jagirani is admitted to post arrest bail upon his furnishing solvent surety in the sum of Rs.300,000/- (Three hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.
11. Needless, to mention that the observations made herein above are tentative in nature and would not prejudice case of either party at trial.
Judge
Ansari