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Criminal Bail Application No. 22 of 1985, decided on 19th February, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860) Ss. 302, 307, 449, 148 & 149‑‑ Bail‑‑ Two conflicting versions of incident existing in case and which was correct version was yet to be decided‑‑No reasonable grounds available to believe that accused had committed a non‑bailable offence‑‑Allegations against accused requiring further inquiry‑‑Accused admitted to bail in circumstances.

Muhammad Hayat Junejo for Applicant.

Abdul Rasool Agha for the Private Complainant.

Abdul Sattar, A.A,‑G. for the State.

On the night between 10th and 11th of July, 1983 at 1‑00 a.m. one Bakhso Alamani resident of village Shadi Khan, Taluka Kandiaro was murdered at 1‑00 a.m. F.I.R. of this incident was lodged by applicant Jaffar on the same night at 4‑00 a.m. at Tharooshah Police Station. His F.I.R. was recorded by A.S.I. Nisar Ahmed. In his F.I.R. applicant Jaffar stated that his cousin Baksho Almani was killed by Imam Bux by gun shot and that Manzoor, Allah Bux, Guloo and Ibrahim were also with Imam Bux at the time of the incident. He further stated that Ibrahim was armed with a pistol and had fired with it as a result of which Mst. Alam Khatoon, the wife of deceased Baksho, was also injured.

In his F.I.R. applicant Jaffar had cited his son Zulfiqar Ali and nephew Amir Bux as eye‑witnesses of the incident besides himself.

Mr. Qadus S.H.O. Tharooshah Police Station, also reached the scene of the offence soon after Mr. Nisar Ahmad had conducted preliminary enquiry and taken over the investigation. He learnt that Mst. Alam Khatoon wife of deceased Bakhso Almani, who was also supposed to be an eye‑witness of the incident has already been referred to medical officer Tharooshah for examination and treatment. She had received one fire arm injury on her arm.

The police papers show that no statement of Mst. Alam Khatoon was recorded by A.S.I. Nisar Ahmed. The investigation was still in progress when Mst. Alam Khatoon filed a direct complaint about the same incident on 19‑7‑1983 in the Court of Resident Magistrate‑Kandiaro. In the direct complaint she cited applicant Jaffar and Ghano as the culprits concerned with the murder of her husband Baksho and gunshot injury to herself. Preliminary enquiry was held and meanwhile on 28‑7‑1983 for the first time Mst. Khatoon was examined by the police. However, in her direct complaint Mst. Alam Khatoon had stated that her statement was recorded by the police on the very following morning of the night of the incident before she was sent to the hospital. In her statement under section 200 recorded by the Magistrate in connection with direct complaint, she stated that her statement was not recorded by the police before she was sent to hospital. It is unbelieveable that she would have been referred to medical officer by the police, without her statement being recorded because she had received an injury only on her arm and, therefore, she must be in a position to give statement. The presumption is that she was examined before having been referred to the medical officer. This presumption is confirmed by her version in the direct complaint that she was referred to the hospital after her statement was recorded by the police on the same morning i.e. 11‑7‑1983. It appears that Mr. Nisar Ahmad A.S.I. has destroyed the first version of the incident as given by Mst. Alain Khatoon before she was referred to the hospital. Mr. Abdul Qadus, S.H.O. who conducted further investigation, had also made a report against Nisar Ahmad, A.S.I. that he had not conducted the investigation fairly and that in the F.I.R. lodged by Jaffar, he had made interpolation by substituting the name of Isso for Baksho as the person who was on the round in the village an enquiry against Mr. Nisar Ahmad about his misconduct in carrying on the present investigation, is in progress. Thus, the presumption is that the earlier statement of Mst. Alam Khatoon which appears to have been removed from the police papers, must be consistent with the version of the incident given by Jaffar applicant in his F.I.R.

Be that as is may the fact is that there are two versions of the incident. One given by Jaffar applicant after three hours of the incident in his F.I.R. in which Imam Bux and four others have been shown as the culprits concerned with the murder of Baksho and injury to Mst. Alam Khatoon. The second version is given by Mst. Alam Khatoon wife of the deceased Baksho in a direct complaint filed after ten days of the incident in which she has cited applicant Jaffar and absconding accused Ghanoo the culprits concerned with the murder of Bakhsho.

It may be stated that the police has filed final challan against Jaffar and Ghanoo, the latter having been shown as absconding. In column No. 2 of the challan Imam Bux and four others have been shown as accused who were not supposed to be tried. Being aggrieved by this conduct of police in to sending up Imam Bux and others for trial, Jaffar filed direct complaint against Imam Bux and others before R.M. Kandiaro, who held preliminary enquiry. During this enquiry Mst. Jannat, daughter of Baksho deceased, and Dildar, son of deceased Bakhsho have been examined as witnesses alongwith other witnesses named by Jaffar in his first F.I.R. Mst. Jannat and Dildar have supported the version of applicant Jaffar as given in his F.I.R. It may be stated that presence of Mst. Jannat at the scene of offence at the time of incident, has been admitted even by Mst. Alam Khatoon in her direct complaint.

In view of the above circumstances it can be said that there are two version of the incident and it has yet to be decided as to which of the two versions, is correct, Mr. Muhammad Hayat Junejo has relied on an unreported decision of Supreme Court in Criminal Petition No. 76‑K of 1978 (Criminal Appeal No. 1‑K of 1985) in which the facts were that there were two versions about the role assigned to the respondent, first in the F.I.R. and then in the direct complaint. It was held by the Supreme Court that under such circumstances the respondent was entitled to bail. The ratio of the above decision is fully attracted to the facts of the present case. Mr. Abdul Sattar, A.A.‑G. has also conceded that in view of the conflicting version of the incident, the applicant is entitled to bail.

In view of the circumstances narrated above I am of view that there are no reasonable grounds to believe at this stage that applicant 1 Jaffar has committed a non‑bailable offence, but the allegations against him require further enquiry. The bail application is, therefore, allowed. The applicant shall be released on furnishing surety in the amount of Rs. 20,000 and P.R. in like amount to the satisfaction of the trial Court

M.Y.H./M‑49/K Bail granted.

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