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Criminal Bail Application No. S-341 of 2014, decided on 2nd September, 2014.

----S. 497(2)---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Bail, grant of---Case of further inquiry---Two F.I.Rs.---Failure to record evidence--- Role alleged against accused by women witnesses was restricted to his mere presence at the spot without actively participating in the incident---Even the role alleged in F.I.R. against accused was not supported by any other material available on record---During investigation statements under S.161, Cr.P.C., of women witnesses was not recorded to establish, prima facie, allegations levelled against accused in F.I.R.---Effect---Two F.I.Rs. of same incident with variation was registered at same police station by different complainants which after due investigation were found to be having sufficient material against accused to refer them for trial---Such investigations had made the case against accused to be of further inquiry into his guilt in terms of S. 497(2), Cr.P.C.---Accused was arrested during investigation but no recovery of any incriminating article was effected from him to support prosecution story as narrated in F.I.R. that at the time of alleged incident the accused was armed with weapon--- Bail was allowed in circumstances. 2014 SCMR 27; 2006 PCr.LJ 1611; 2008 YLR 1753; 2012 PCr.LJ 1324 and 2012 SCMR 662 ref. Rashid Ali Sindhu for Applicant. Zulfiquar Ali Jatoi, D.P.-G. for the State. Complainant in person.

This order shall dispose of the application under section 497, Cr.P.C. filed by the applicant in Crime No.90 of 2014 of P.S.A-Section Ghotki under sections 302, 311, 120-B, 34, P.P.C. 2. Precisely the facts of the case are that SIP Qurban Ali Kalhoro posted at P.S.A-Section Ghotki along with his subordinate staff was on Patrol duty, during which at about 1530 hours when he reached Aico Dhari Bridge, heard fire shots reports coming from village Azim Tarat upon which he along with his staff reached the house of Arbelo Tarat where from the voices of crying were emanating and meanwhile saw four persons duly armed with pistols after emerging from the house fled away towards northern side. The complainant party then went inside the house where many women were present and were crying. The complainant spotted the dead body of a woman lying over there. The women who were crying disclosed the name of deceased as Mst. Sahiba daughter of Nabi Bux wife of Arbelo Tarat and stated that accused every one Arbelo and Anwar both sons of Bachal, Muhammad Khan alias Muhammad Bux son of Mouladad and Gul Muhammad son of Taj Muhammad Tarat, with their common intention hatched a conspiracy of declaring Mst. Sahiba as Kari with Hakim Tarat and then accused Arbelo and Anwar by causing straight fires upon Mst. Sahiba had committed her murder and then fled away. The complainant party with the help of women folk examined the deceased and found two fire arm injuries on her person, who due to such fire arm injuries had already expired. Whereafter the complainant sent the dead body with P.C. Mumtaz Ali to Taluka Hospital Ghotki for postmortem and he with other staff went to search for the accused but could not succeed, hence he appeared at P.S. and registered the F.I.R. as stated above. During investigation the applicant was arrested by the police on 28-3-2014. 3. The learned counsel for the applicant has contended that the complainant is not the eye-witness of the incident but on the basis of statements of women allegedly present in the house of accused Arbelo Tarat, the instant F.I.R. was registered wherein the applicant was nominated by him. Per learned counsel the F.I.R. is based on hearsay evidence as no eye-witness of the incident has been cited by the prosecution in the challan submitted in the Court for the purpose of trial. He further contended that the story narrated by the complainant in the F.I.R. is false and fabricated which has been forwarded by the complainant without any substantial material against the applicant in order to show efficiency. Per learned counsel the women allegedly present in the house who had divulged the presence of applicant in the house along with the co-accused have not been made witness in the prosecution case. The absence of these women has rendered the case against the applicant a case of no evidence, as such it requires further evidence into the guilt of the applicant as contemplated under section 497(1), Cr.P.C. He further stated that even in the F.I.R. no role is attributed against the applicant and merely his presence has been shown by the complainant. Per learned counsel the father of deceased Mst. Sahiba has got an F.I.R. registered bearing Crime No.122 of 2014 Police Station Ghotki of the same incident in which he has alleged that the accused Anwar in his presence had committed murder of his daughter Mst. Sahiba, therefore, in view of such F.I.R., he contended that, two versions of the incident have come on record and which version is correct one is yet to be determined at the trial. He lastly relied upon the case laws reported in 2014 SCMR 27, 2006 PCr.LJ 1611, 2008 YLR 1753, 2012 PCr.LJ 1324, 2012 SCMR 662 and prayed for grant of bail to the applicant in terms of section 497, Cr.P.C. 4. Conversely the learned D.P.-G. though opposed the grant of bail to the applicant, however, could not controvert the contentions raised by the learned defence counsel that there was no direct evidence against the applicant and the women who are alleged to have witnessed the incident have not been made prosecution witness. 5. I have heard learned counsel for the parties and gone through the material so made available before me and the case laws relied upon. 6. On the tentative assessment of the material collected by the prosecution against the applicant during the investigation, it transpires that the name of the applicant was taken by the women who were present in the house of co-accused Arbelo by informing the complainant that alleged murder of deceased was committed by the present applicant along with co-accused namely Arbelo and Anwar, who are assigned the main role of causing fire arm injuries to the deceased Mst. Sahiba. The role alleged against the applicant by the said women is restricted to his mere presence at the spot without actively participating in the incident. However even the said role alleged in the F.I.R. against the applicant is not supported from any other material available on the record as during the investigation the statements of women under section 161, Cr.P.C., who had seen the applicant at the spot along with the co-accused, have not been recorded to establish, prima facie, the allegations levelled against the applicant in the F.I.R. Ostensibly the accused does not appear to be directly connected with the motive part of the prosecution story as he is not alleged to have made firing at the deceased or any other witness present there. Moreover the father of the deceased Mst. Sahiba has lodged an F.I.R. bearing Crime No.122 of 2014 under sections 302 and 311, P.P.C., pertaining to the same incident in which he has alleged that it was accused Anwar who in his presence committed murder of his daughter Sahiba. I have been informed by the learned D.P.-G. that the challan in that case has also been submitted in terms of section 173, Cr.P.C. The two F.I.Rs. of the same incident with variation have been registered at the same police station by the different complainants which after due investigation are found to be having sufficient material against the accused to refer them for trial, has made the case against the applicant to be of further enquiry into his guilt in terms of clause (1) of section 497, Cr.P.C. The applicant was arrested during investigation but no recovery of any incriminating article was effected from him to support the prosecution story as narrated in the F.I.R. that at the time of alleged incident the applicant was armed with the weapon. 7. The honourable Supreme Court in a case of Nisar Ahmed v. The State has been pleased to observe as under:-- "----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 452, 109 & 34---Qatl-i-amd, house-trespass after preparation for hurt, abetment, common intention---Bail, grant of---Further inquiry---Accused and co-accused allegedly entered complainant"s house, whereafter co-accused shot at and killed complainant"s daughter/deceased---Prima facie, accused was not directly connected with the motive part of the prosecution story---Accused was not alleged to have fired at the deceased or any prosecution witness at the time of occurrence---Even the motorcycle on which the accused allegedly came at the spot of occurrence did not belong to him, and according to Investigating Officer it was owned by a co-accused---Question of accused"s guilt required further inquiry---Accused was released on bail accordingly." 8. Having made such discussion, I am of the view that the applicant has been able to make out a case for grant of bail, which is granted to him accordingly subject to his furnishing a solvent surety in the sum of Rs.100,000 and P.R. bond in the like amount to the satisfaction of trial Court. 9. The observations made hereinabove are tentative in nature, which shall not prejudice the case of either side on merits. MH/M-158/Sindh Bail allowed.

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