1. ' This is an application for pre-arrest bail of the five applicants namely, A.S.-I. Abdul Karim, H.C.
2. Abdul Shakoor, Abdul Sattar, Abdul Chalk! And Abdul Rahman a primary teacher, who are facing trial for offences under sections 302, 114, 148, 149, P.P.C.
3. ' The facts of the prosecution case as given by the complainant in his F.I.R. Lodged on 19-5-2001 at 20-30 hours are as follows:-- "That about 15/20 years back a quarrel had occurred with Abdul Sattar Lakho which report was lodged against my brother Ghulam Nabi and others at P.S. Ghotki. Such dispute was also privately settled. However, Abdul Khaliq alias Shahzado used to say that he would take revenge of his father.
4. My brother Ghulam Nabi aged about 40 years is a Chowkidar of Bashir Awan at his Mango Garden.
5. He had after sun set time left for his duty towards Mango Garden. After some time I and my cousins Abdul Shakoor and Allah Wadhayo together, took meals for Ghulam Nabi (the deceased) having torches with us. On reaching near the Garden at 19-45 hours, on the light of torch, we saw our brother Ghulam Nabi sitting on the ground. In the meanwhile, there emerged from southern side accused namely (1) Abdul Khaliq alias Shahzado with Kalashnikov, (2) Karim Bux with Kalashnikov,
(3) Abdul Rahman with a .222 rifle, (4) Abdul Shakoor with a .222 rifle and (5) Abdul Sattar empty- handed, when Abdul Sattar instigated and said that Ghulam Nabi had unnecessarily caused him blows earlier, so today (you) have to kill him whereupon Karim Bux fired a burst which was followed by another burst by Abdul Khaliq whereafter bursts and bullets were showered by all the armed accused. We raised Hakals and restrained them from killing our man, also raised cries of murder murder. Since we were empty-handed we did not go near. The accused then went away towards East. We thereafter saw on the torch light, our brother Ghulam Nabi lying, dead bleeding from his injuries on his chest due to fire-arm shots. Thereafter, with the assistance of the above-named P.Ws., have brought the dead body of brother Ghulam Nabi at the police station. I report that the above-named accused have killed brother Ghulam Nabi at the instigation of Abdul Sattar by firing at him from Kalashnikovs and .222 rifles. Justice be done.
6. (Sd.) S.I.P. P.S. Ghotki. (Sd.) complainant"
7. ' The facts further reveal that during the investigation some of the applicants were found innocent and they were let off under section 497, Cr.P.C. The complainant, therefore, moved an application before S.S.P., Ghotki requesting for transfer of investigation to S.D.P.O., Ubaro who in compliance to such orders, upon completion of the enquiry/ investigation submitted report recommending names of the applicants to be placed in column No,2 with further recommendations that the remaining applicants be released under section 169, Cr.P.C. That the complainant being not satisfied with such enquiry report again moved D.I.-G. Police Crimes Branch, Karachi and requested him that the matter be re-investigated by Crimes Branch. The Crimes Branch, Sukkur thus, investigated the matter and recommended that the accused named in the F.I.R. May be challaned.
8. The police thus, submitted the challan under section 512, Cr.P.C. Showing all the applicants as absconding accused.
9. ' The learned Sessions Judge after receipt of challan, ordered Non-bailable warrants against them.
10. The applicants thereafter moved the Court for grant of protective bail which was allowed to them, to approach the trial Court. The applicants thus, appeared before the Court of learned Sessions Judge, Ghotki for bail who transferred the bail application to the Court of IVth Additional Sessions Judge, Mirpur Mathelo who allowed interim pre-arrest bail to all the applicants vide his order, dated 26-11-2001. However, upon a reference, the matter came to be decided by the learned Sessions Judge who dismissed the bail application of the applicants and recalled the interim pre- arrest bail order, hence this bail application before this Court.
11. ' It was contended on behalf of the applicants that they were innocent. The case against them is false and same is result of enmity between the parties. They were first released by the first Investigating Agency under section 497, Cr.P.C. And afterwards too, they were released by another agency under section 169, Cr.P.C. It is contended that applicant Abdul Karim is A.S.-I. In the Police Department, posted in Police Lines, Mirpur Mathelo and was on duty at the time of alleged incident.
12. Such copy of duty certificate issued by S.H.O., P.S. Ghotki and S.S.P. Ghotki has been filed as Annexure "I". It is added that applicant Abdul Shakoor is a Head Constable and he is son- of applicant A.S.-I. Abdul Karim. That, applicant Abdul Sattar who is brother of applicant A.S.-I. Abdul Karim is a diseased person, suffers from Hemiplegia (right side) and is a disabled person. That he cannot even move independently and was thus, not capable of committing any offence. In support, a Medical Certificate is filed as Annexure "J".
13. ' It is further argued that applicant Abdul Khaliq is son of applicant Abdul Sattar. He is a clerk in the office of Union Council, Qadirpur, District Ghotki. It is next submitted that the applicant Abdul Rahman is a primary school teacher posted at Government Primary School, Sherdil Mahar and was present on duty. Such duty certificate is filed as Annexure "A".
14. ' It is further urged that all the applicants are male members of one and the same family and have been implicated by the complainant due to mala fide and ulterior motive, who want to take revenge from them due to old enmity between the parties.
15. ' It was emphasized that the matter was investigated by four agencies and it was only the last agency, the Crimes Branch, which recommended sending up of the accused for trial. That in view of such opinion of the investigating agencies, the case of prosecution warranted also further enquiry as envisaged under section 497(2), Cr.P.C.
16. ' It is also submitted that even after the submission of challan the I.-G. Sindh upon being moved by the complainant party had again ordered the re-investigation in the case and the A.I.-G. Sukkur has been appointed as Enquiry Officer who is holding a fresh enquiry in the matter, the result is awaited.
17. ' On the merits, it was submitted that the complainant has stated in the F.I.R. That dead body was removed from the place of incident prior to the registration of the F.I.R. Which creates serious doubt in the truthfulness of prosecution story, secondly that the I.O. Collected 10 empties of 7.62 rifle only, from the place of Wardat whereas, as per the prosecution case the accused fired from Kalashnikovs and .222 rifles. It was lastly urged that the applicants never intended to abscond nor did they intend to evade the process of law. Record would show that they were all along persuading their legal remedy in different Courts. Concluding, the learned counsel for the applicants contended that the applicants have remained on interim pre-arrest bail for sufficient time and they have never misused such concession. It was thus, prayed that the applicants are entitled to grant of pre-arrest bail. Reliance was placed on the following case-law:--
(1) 1978 SCM R 242, (2) 1986 SCM R 1978, (3) 1986 PCr.LJ 460, (4) 1991 SCM R 1630, (5) 1992 SCM R 600,
(6) 1993 SCM R 2288, (7) 1994 PSC 570, (8) PLD 1996 SC 589, (9) 1997 SCM R 1829.
18. ' On the other hand, Mr. Habibullah Shaikh, learned counsel for the complainant argued that the F.I.R. Was promptly lodged within 45 minutes of the incident. The names of the applicants are appearing in the F.I.R. With specific roles assigned to each of them. The medical report supports the ocular version in toto. It was urged that the plea of alibi of the two applicants was manipulated and false. It was contended that the complainant succeeded in getting the applicants challaned through the Crimes Branch after painful efforts. That, the investigation conducted by Crimes Branch only was honest one. The learned counsel also pointed out that the applicants had slipped away from the Court of Sessions when their bail application was rejected. For all the aforesaid reasons, the counsel contended that the applicants were not entitled to grant of pre-arrest bail. He placed reliance upon the following case-law:--
(1) PLD 1966 SC 589, (2) PLD 1974 SC 83, (3) 1979 SCM R 101, (4) PLD 1985 SC 1949, (5) PLD 1985 SC 402,
(6) 1988 SCM R 1, (7) 1988 SCM R 1743 and (8) PLD 1998 SC 97.
19. ' Mr. Ghulam Shabbeer Shar, learned counsel appearing for the State while conceding to the bail plea of the applicants submitted that the three Investigating Agencies declared the applicants innocent and hence they were released under sections 497 and 169, Cr.P.C. Prior to submission of challan.
20. ' I have heard the learned counsel for the parties and gone through the above-referred case-law.
21. There is no denial of the fact that all the applicants are members of the same family and are in different services except applicant Abdul Sattar. The incident occurred at 7-45 p.m. In the month of May, 19th (2001). The P.Ws. Are stated to have been possessing each, a torch in his hand, on the light of which they saw the deceased sitting on the ground, which shows that sunlight was not available. Out of the four, the opinion of the three Investigating Officers is in favor of the applicants.
22. Though Courts are not bound by the ipsi dixit of police yet their findings can be considered and scrutinized in relation to its weight. Another aspect of failure to entrust the investigation to the senior Police Officer in Crimes Branch against a junior, also cannot be discarded and his investigation cannot be given more weight.
23. ' The applicants are all, except one, Government servants. They are not likely to abscond. The interim bail granted to them is, therefore, confirmed in the same terms and conditions.
24. ' By a short order, dated 21-2-2003 interim pre-arrest bail of the applicants was confirmed and above are the reasons for the same.