Having been involved in case vide F.I.R. No,8 dated 14-3-2005 under section 302/34, P.P.C. registered at Police Station Shah Salim, District Karak, the accused-petitioners applied for their release on bail in the Court of learned Judicial Magistrate, Takhat Nasrati but their application was dismissed vide order, dated 26-3-2005. Thereafter, they moved the Court of learned Additional Sessions Judge, Takht Nasrati but their application was rejected vide order, dated 8-4-2005. Now they have moved this Court for their release on bail.
2. Brief facts of F.I.R. are that on 13-3-2005 deceased namely Rai Nawaz went to his in-law's house, on the same night at 9-30 p.m. complainant heard firing, he went out and searched nearby land etc. but did not find anything. At the morning time he came to know that his uncle namely Rai Nawaz has been killed. After confirmation accused namely Mumtaz Khan, Noor Saadat Khan and Khan Gul were charged.
3. Mr. Abdul Samad Khan, Advocate learned counsel representing the petitioners argued that the F.I.R. was lodged with a delay of 11 hours after due deliberation and consultation. This fact was admitted by Shoaib Khan in his statement recorded under section 164, Cr.P.C. on 16-3-2005.
4. It was further argued that the occurrence was unseen and the only evidence available with the prosecution was Sharifullah and Shoaib Khan who did not support the prosecution. Not only in their statements recorded under section 161, Cr.P.C. but they also did not support the case of the prosecution in their statement under section 164, Cr.P.C. None of them stated that they had seen the occurrence. They even did not state having seen the deceased Rai Nawaz at the place of occurrence. Only seeing the accused duly armed by them would not constitute the "last-seen evidence". Reliance in this regard is placed on 1997 SCMR 1279.
5. It was also argued that although nine empties of 7.62 bore were recovered from the place of occurrence but neither any weapon of offence has been recovered from the accused nor there is any evidence available on record that the recovery was the result of firing made by the accused- petitioners.
6. It was further argued that the motive alone howsoever, strong may be cannot be substitute for evidence and bail cannot be refused on the basis of motive alone. Reliance in this regard is placed on 2004 MLD 335 and 1999 PCr.LJ 1323.
7. On the other hand Malik Akhtar Naveed, learned Deputy Advocate-General representing the State and Mr. Sakhi Janan, Advocate the learned counsel representing the complainant argued that even if the F.I.R. is lodged with a delay, the same cannot be taken into consideration at this stage as held in 2003 PCr.LJ 293.
8. It was also argued that there was sufficient evidence available on record to connect the accused-petitioners with the commission of offence. They were not only nominated in the F.I.R. but in addition to two P.Ws. the prosecution also in order to deduct the guilt of the accused-petitioners, brought tracker dogs from the Army who pointed out the houses of the petitioners. The pointation made by the tracker dogs can be taken out of consideration at this stage. Reliance is placed on PLD 2004 Lah. 829 and 2001 PCr.LJ 1420.
9.It was further argued that there were 9 empties recovered from the spot i,e, from the place where the accused-petitioners have been shown which supports the prosecution case.
10.It was also argued that there was evidence of last-seen. Sharifullah and Shoaib Khan have seen the accused-petitioners duly armed at the place of occurrence which was quite away from their house and there is no explanation on the record that what they were doing at the spot.
11.I have heard the learned counsel for the parties at length and perused the available record.
12. The admitted position in this case is that Rai Nawaz was done to death at 21-30 hours on 13-3- 2005.. The occurrence was unseen. The complainant made report on the following day i,e, on 14-3- 2005 at 7-15 hours. There is no explanation worth the name as to why the report was so delayed.
Shoaib Khan was examined under section 164, Cr.P.C. by the prosecution. In cross-examination he admitted that F.I.R. was lodged after due deliberation and consultation. The prosecution relied upon two star-witnesses namely Sharifullah and Shoaib Khan. Their statements were recorded under section 161, Cr.P.C. as well as under section 164, Cr.P.C. Perusal of their statements shows that they did not utter a single word with regard to the occurrence. They had not seen the deceased on the spot. They had only seen three accused-petitioners duly armed having reached to the spot through a Datsun and the question which arises at this stage would be as to whether the evidence given by them can be described as "last-seen". The answer of this question has been given by august Supreme Court of Pakistan in Ijaz Ahmad and another v. The State 1997 SCMR 1279. It was held that:-- "There is no ocular evidence to show that Muhammad Abbas was murdered by any of the present petitioners. Mere fact that Noor Muhammad and Muhammad Din saw firstly the deceased and after some distance they saw the petitioners going towards the same direction, did not mean that the petitioners were chasing the deceased or were accompanying him. Such evidence cannot be treated as evidence of last-seen."
13.The prosecution also relies upon the pointation made by the tracker dogs. Admittedly the tracker dogs were brought on the request of the elders of the locality. One Naib Subedar Muzammil Khan brought these dogs. The argument of the learned counsel for the complainant that the pointation of the house of the accused-petitioners made by the tracker dogs is a sufficient piece of evidence to connect the accused-petitioners with the commission of offence, the said argument has no force because it is in evidence that the tracker dogs only pointed out the "house" of the petitioners. There is a possibility that any other person after having committed the offence might have gone to the house of the petitioners which was pointed out by the tracker dogs but the said evidence would be established and seen after recording the statements of the prosecution witnesses in this regard. The prosecution neither examined the elders of the locality who managed the tracker dogs nor the statement of Naib Subedar Muzammil Khan who brought the tracker dogs was recorded to form part of the record. Therefore, there is nothing available on record except a daily diary dated 16-3-2005 written by the Investigating Officer with regard to pointation made by the tracker dogs.
14. At the moment there is no sufficient evidence available on record to connect the accused- petitioners with the commission of offence. I, therefore, admit them to bail provided each one of them furnished bail bonds in the sum of Rs, two lac with two sureties each in the like amount to the satisfaction of Judicial Magistrate-II, Takht Nasrati who shall ensure that the sureties must be local, reliable and men of means.