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Criminal Bail Application No. 1307 of 1985, decided on 4th November, 1985.

-----S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Earlier version of occurrence as put forward by prosecution in shape of F.I.R. not supported by witnesses including complainant while two of prosecution witnesses although named in F.I.R. yet not examined by prosecution‑ Held: A case of further inquiry, in circumstances.

Amjad and another v. State 1982 S C M R 955 and Amir v. State P L D 1972 S C 277 ref.

Ch. Iftikhar Ahmed for Applicant.

Abdus Sattar Shaikh, Asstt. A.‑G. for the State.

This application has been moved for release of the applicant Nadeem Ahmed on bail. It appears that the applicant is facing trial under sections 302, 307/34, P.P.C. As disclosed in the F.I.R. the allegations against the applicant are that he and his companions had caused injuries to the deceased Salahuddin and two others namely complainant Jameel Baloch and one Zulfiqar. Salahuddin is stated to have succumbed to his injuries.

I have heard the arguments of the learned counsel for the applicant in support of the application and the learned Additional Advocate‑General has made his submissions on behalf of the State.

The main argument that has been made by the learned counsel for the applicant is that prosecutions earliest version of the case contained in the F.I.R. has not been supported by all the eye‑‑witnesses including the complainant himself in respect of majority of the accused namely Ubaid and Zahir Shah and as such the case of accused calls for further inquiry on that ground. In support of his contention he has relied upon Amjad and another v. The State 1982 S C M R 955 wherein the learned Supreme Court made the following observations:‑

"The learned counsel for the petitioner submitted that no sanctity can be attached to the version given in the F.I.R. in view of the fact that it has been found to be false with regard to majority of the accused. He further submitted that petitioners have only been attributed one injury each on the leg of the deceased. We issued notice to the State and have heard the learned counsel for the parties. We do not propose to discuss the merits of the case but feel that in the circumstances of the case the two petitioners are entitled to grant of bail."

Another authority relied upon by the learned counsel for the applicant is reported as Amir v. The State P L D 1972 S C 277 wherein it was held:

"It may also be observed that even for purpose of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises it must go to the accused."

In the instant case so far F.I.R. is concerned the complainant has implicated not only the applicant but also other two persons namely Ubaid and Zahir Shah as being assailants who took part in causing injuries to the complainant side. The medical evidence discloses four injuries on the person of the deceased and the version given in the F.I.R. shows that not only the applicant but also one Zahir Shah who has however been let off by police was responsible for inflicting those injuries. However in his subsequent statement recorded under section 164, Cr.P.C. the complainant has deviated from his earlier statement and has exonerated Ubaid and Zahir Shah. Similarly another injured person Zulfiqar has also not supported the prosecution version contained in the F.I.R.

Apart from above there are other persons namely Nafees Ibrahim and Shakeel who are stated to have witnessed the occurrence. Shakeel has not been examined by the police whereas Nafees Ibrahim has been made Mashir of inquest. In absence of their statements with regard to the occurrence they are also to be presumed to have not supported the prosecution version contained in the F.I.R.

On the other hand learned A.A.‑G. has opposed the bail application as according to him the applicant has been implicated by the complainant and other witnesses and the variation between the complainant's earlier version given in the F.I.R. and his subsequent statement under section 164, Cr.P.C. cannot be considered at this stage.

I have considered the arguments addressed at the Bar. I am of the view that because the earlier version of the occurrence as put forward by the prosecution in the shape of F. I. R. has not been supported A by the witnesses including the complainant himself so much so that Ubaid and Zahir Shah who were named as co‑accused in the F.I.R. have been let off and furthermore, the prosecution have not examined two eye‑witnesses Nafees Ibrahim and Shakeel though according to F.I.R. they too had witnessed the occurrence, the case of the accused calls for further inquiry. This view finds support from the authorities relied upon by the learned counsel for the applicant as reproduced above. Accordingly bail is allowed to the applicant in the sum of Rs. 30,000 and P.R. of the same amount to the satisfaction of the trial Court.

S. G. D. Bail allowed.

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