2016 P Cr. L J 1793
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail, J
SAADULLAH ---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No.139 of 2014, decided on 5th January, 2015.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss.396, 147, 148 & 149--- Dacoity with murder, rioting,
common object ---Bail, refusal of ---Accused had been nominated in the FIR with specific role of
firing with allegation that he along with more than five persons, c onjointly committed a dacoity,
murdering a person and injuring witness ---Every one of them was equally liable for the offence
committed by any one of them---Unexplained abscondance of accused, could be considered as
corroborative piece of evidence, which prima facie, had shown involvement of accused ---
Recovery of 35 empty cartridges of Kalashnikov and 11 empty shells of L.M.G., corroborated
the statement of the complainant ---Motive, though was not alleged in the FIR, but the allegation
of dacoity, itself wa s sufficient to be considered as motive towards commission of offence;
followed by murder of one person and injuring the prosecution witness ---Unnatural death of the
deceased and the injuries caused to the prosecution's witnesses, were corroborated by
postmortem report and medical certificate ---Substitution of culprits, was not possible; it was a
rear phenomenon where a witness, whose close relative had been murdered would substitute
accused with innocent person---Delay of about eight hours in registration of FIR, was reasonably
and satisfactorily explained ---After unexplained abscondance of accused for about 18 months,
recovery of any lethal weapon was not possible ---Challan in the case had already been
submitted, and statements of witnesses were being reco rded---Offence under S.396, P.P.C., was
non-bailable ---Rule of consistency did not apply in two different cases; that ground agitated on
behalf of accused, was not worthy of consideration---No reasonable ground existed in favour of
accused to admit him to bail, bail application was dismissed.
Tariq Bashir v. State PLD 1995 SC 34; Muhammad Imran v. State 2014 PCr.LJ 456;
Farzana v. SHO 2014 PCr.LJ 460; Shahzaid Kamal v. State 2008 PCr.LJ 1606; Habibullah v.
State 2007 YLR 216; Muhammad Saleem v. State 2007 YLR 1551; Muhammad Aslam v. State
2010 YLR 712 and Khizar Hayat v. The State 2011 SCMR 429 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Bail ---Benefit of reasonable doubt ---Scope ---Each and every criminal case could
be brought within the purview of further inquiry and same could be considered as a reasonable
ground for admission of an accused to bail ---Question of benefit of reasonable doubt, was
necessary to be determined, not only while deciding the question of guilt of an accused, but also
while considering the question of bail, because there was a wide difference between the jail life
and free life ---Benefit of reasonable doubt about occurrence itself, identity of accused, part
allegedly played by him in the occurrence, his presence o n the spot, and the question of his
vicarious liability, would go to him even at bail stage.
Shah Muhammad Jatoi for Applicant.
Miss Sarwat Hina, Additional Prosecutor General for Respondent.
Date of hearing: 31 December, 2014.
ORDER
MUHAMMAD KAMRAN K HAN MULAKHAIL, J. ---Criminal Bail Application
No.(s) 139 of 2014 (post arrest bail) on behalf of the accused/applicant Saadullah son of
Muhammad Jan and Criminal Bail Application No.(s)125 of 2014 (pre -arrest bail) on behalf of
accused/applicant Asghar Ali son of Ahmed Jan were decided through common order dated
31.10.2014.
The order was assailed to the extent of accused Saadullah before the Hon'ble Supreme
Court in Criminal Petition No.599 of 2014 (converted in Crl. A. No.614 of 2014), whereby the
Hon'ble Supreme Court remanded the case to this Court for decision afresh.
2. Brief facts of the case are that on stated date, time and place the applicant Saadullah
along with absconding accused persons murdered the shepherd namely Altaf Hussain and injured
another person namely Rehmatullah on their resistance during the course of decoity. It was
further alleged that they after snatching the cattle also looted the tents/houses of the complainant
and the deceased, where they snatched the gold ornaments and cash fr om the women folk,
corollary, the FIR No.05 of 2013 under section 396 read with sections 147, 148 and 149 of the
Pakistan Penal Code, 1860 was registered.
3. Mr. Shah Muhammad Jatoi, learned counsel at the very outset contended that besides FIR
No.05 of 2013, the applicant/accused Saadullah was also nominated in FIR No.03 of 2013 of the
Levies Thana, Bhag lodged under sections 396, 147, 148 and 149 of P.P.C. on the complaint of
one Khamiso Khan. He contended that initially the accused/applicant was admitted to pre -arrest
bail in both the cases, however, the pre -arrest bail application was rejected vide order dated
27.08.2014 and thereafter applicant was arrested, on which he filed the applications for post -
arrest bail in both the cases. The learned counsel contended that in FIR No.03 of 2013 the
applicant was admitted to bail on the basis of further inquiry, but in the instant case the same
relief was declined to him vide separate order of even date. He asserted that the nature of
allegation, the role alleged ly played by applicant and manner of both occurrences were same
rather a ditto copy of each other. He contended that the learned trial Court has failed to
appreciate the proposition involved in the instant case, because in both the cases even the
defence r elating to false implication was also same and both cases were argued together, but in
the earlier case benefit of doubt was extended at bail stage, because no overt act was assigned to
the applicant and delay in registration of FIR was considered as fatal to the prosecution's case,
but in the instant case said grounds were not considered. He maintained that the course adopted
by the learned trial court is against the principles of consistency and principles governing the law
of bail. He stated that the FIR in the instant case was lodged with unexplained delay of eight
hours and as many as eleven persons were nominated with name and parentage and general
allegation of firing was assigned to all of them along with one unknown person, while only one
person was alleged to have succumbed to injuries due to alleged firing made by all of them and
one Rehmatullah was alleged to have sustained injuries. He added that the FIR is silent about
motive and no enmity was shown between the parties, however, he maintained that, admittedly
there is a long -lasting tribe's feud between the 'Jatoi' and 'Rind' tribes and the applicant belongs
to Jatoi tribe, while the complainant belongs to Rind tribe, therefore, on the instance of their
tribe's chief, the complainant falsely implicated the applicant and his other tribes men. He stated
that application for registration of FIR was handed down by the petition writer at 12.30 a.m.
which in remote area like Tehsil Bhag is not possible; therefore, the delay caused in registration
of FIR was due to consultation and deliberation, which creates sufficient doubt towards the
veracity of the complainant's version. He finally urged that keeping in view the facts and
circumstances, the possibility of false implication of applicant cannot be rule d out at this stage.
He maintained that since the challan of the cases has already been submitted before the trial court
and the applicant/accused has also been shifted to judicial custody, therefore, when neither any
recovery was effected from him nor he is any more required for purpose of investigation,
therefore, his case falls within the ambit of further inquiry and he deserves to be admitted to bail.
In support of his contention he relied upon the following cases:
Tariq Bashir v. State, PLD 1995 Supre me Court 34
Muhammad Imran v. State, 2014 PCr.LJ 456
Farzana v. SHO, 2014 PCr.LJ 460
Shahzaib Kamal v. State, 2008 PCr.LJ 1606
Habibullah v. State, 2007 YLR 216
Muhammad Saleem v. State, 2007 YLR 1551
Muhammad Aslam v. State, 2010 YLR 712
4. Miss Sarwat Hina, learned Additional Prosecutor General, strongly opposed the plea of
bail and contended that after submission of challan, so far, the statements of complainant and the
doctor have already been recorded on 18.12.2014 and the trial is in progress , therefore, at this
stage any observation in respect of involvement or otherwise of the applicant, may prejudice the
case of either side, therefore, applicant is not entitled to be admitted to bail. She also relied on a
reported judgment in Tariq Bashir v. The State, (PLD 1995 SC 34) and stated that no case of
further inquiry is made out, therefore, the applicant is not entitled to be admitted to bail.
5. I have heard the learned counsel and learned APG at reasonable length and have also
gone through the r ecord with their able assistance. On perusal of the record I observed as under:
(a) The applicant has been nominated in the FIR with specific role of firing with
allegation that he along with more than five persons, conjointly committed a decoity and
murde red the deceased Altaf Hussain on his resistance during the course of decoity and
also caused firearm injuries to the witness Rehmatullah, therefore, everyone of them is
equally liable for the offence committed by anyone of them.
(b) The FIR was registered on 23.01.2013 and applicant surrendered before the Court
in the month of August 2014, therefore, the unexplained abscondance of the
applicant/accused can also be considered as corroborative piece of evidence, which prima
facie shows his involvement towards the alleged commission of crime.
(c) After the occurrence, the investigation officer secured 35 empty cartridges of
Kalashnikov and 11 empty shells of LMG , which corroborates the statement of the
complainant.
(d) Though, the motive is not alleged in the FIR but the allegation of decoity itself is
sufficient to be considered as motive towards the commission of offence followed by
murder of one human being and injuries caused to the prosecution witness Rehmatullah.
(e) The unnatural death of the deceased and the injuries caused to the prosecution's
witnesses are not disputed, rather the same are corroborated by means of postmortem
report Ex.P/2- A and medical certificate Ex.P/2 -B produced by PW -2 Dr. Qalandar
Bakhsh.
(f) The plea of false implication raised on behalf of the applicant is self -destructive to
his case as on the one hand it has been stated that there is no enmity between the parties
and on the other it was asserted that there was a long -lasting triable enmity between the
'Jatoi and Rind' tribes, therefore, the applicant along with his other tribes men were
nominated on instance of complainant's tribe's chief , however, the motive being double
edged weapon works in both ways and at the same time can be considered as reason
behind the occurrence.
It is suffice to observe here that the substitution of culprits is not possible besides it is a
rear phenomenon where a witness whose closed relative has been murdered would
substitute the accused with innocent person, thereby allowing the actual accused to go
scot-free. Reference is made to the case of Khizar Hayat v. The State 2011 SCMR 429.
(g) About eight hours delay in registration of FIR can be considered as reasonable
and looks to be satisfactorily explained due to approximate distance of 28 to 30 kilometer
in between the place of alleged occurrence and "Levies Thana Bhag", particularly, when
the dead body of the deceased and injured Rehmatullah were first brought to the hospital
and then the FIR was lodged.
(h) The question of recovery after arrest of the accused/applicant is of no avail, as he
was neither arrested on the spot nor soon after the occurrence, but after the unexplained
abscondance of about 18 months, therefore, the recovery of any lethal weapon was
virtually not possible. The challan in the case has already been submitted, wherein the
statements of witnesses are being recorded, hence at this stage adjudication upon the
grounds agitated on behalf of the applicant will amount to decide the whole case, which
is not permissible under the law.
(i) The offence under section 396, P.P.C. relates to the decoity with murder, if
anyone of five or more persons, who are conjointly committing decoity, commits murder
in so committing decoity, which is non- bailable in nature.
(j) It is suffice to observe he re that every criminal case has its own merits and
similarity of facts of one case, particularly, in case of bail granting order cannot be used
as additional ground for grant of bail in an entirely different case. Thus, the role of
consistency does not apply in two different cases and this ground agitated on behalf of
the applicant is not worthy of consideration.
The bails granting order of even date passed in FIR No.03 of 2014 has been brought in
my notice by the learned counsel for the applicant, therefo re, I, while exercising my supervisory
jurisdiction as envisaged under section 439, Cr.P.C. intend to issue show cause notice to the
accused/applicant and office is directed to register that matter as Suo Motu criminal revision
petition, which will be deci ded separately.
6. Now, adverting to the precedents referred by the learned counsel I would attend the
referred to citations as follows:
The Learned counsel for the applicant as well as the learned APG, simultaneously, relied
upon the case of Tariq Bashir v. The State, (PLD 1995 SC 34).
As far as the principle of further inquiry is concerned, each and every criminal case can
be brought within the preview of further inquiry and same can be considered as a reasonable
ground for admission of an accused to ba il, in the referred to judgment it has been held that
"Question of benefit of reasonable doubt is necessary to be determined not only while deciding
the question of guilt of an accused but also while considering the question of bail because there
is a wide difference between the jail life and free life. So, benefit of reasonable doubt about
occurrence itself, identity of accused, part allegedly played by him in the occurrence, his
presence on the spot and on the question of his vicarious liability, would go to him even at bail
stage."
The rest of the precedents cited by the learned counsel for the applicant, do not provide
any assistance, being not applicable in the instant case, therefore, need not be discussed.
7. In view of above discussion, I am of the considered opinion that the occurrence itself,
identity of the accused followed by his nomination with name and parentage, part played by him
in the occurrence, his presence on the spot and all the questions of his vicarious liability, coupled
with submiss ion of challan and on oath statement of the complainant, altogether, brings me to the
conclusion that no reasonable ground exists in favour of the applicant to admit him to post arrest
bail, therefore, application is dismissed accordingly.
Needless to men tion here that observations made hereinabove are mean for disposal of
instant application alone, which shall have no bearing on merits of the case.
HBT/51/Bal. Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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