1. ' SARMAD JALAL OSMANY, J.----Briefly stated the facts of the matter per F.I.R. No,83 of 2004 of Police Station Mirwah lodged on 18-6-2004 per the complainant are that he is Senior Civil Judge then posted at Tando Allahyar and had gone to Karachi at the time of the incident. At 0430 hours on 7- 6-2004 his relative Nisar Hussian Shar called to inform him that his son Yasir Nawaz had expired in an accident. He then proceeded to his village and attended the funeral ceremony of his son. Upon enquiry he was informed by his brother Ghulam Taqi and Niaz Ali that on 6-6-2004 they were present in their Otaq at evening time when Applicant/accused Jamshed Ahmed came on his motorcycle and took away deceased Yasir Nawaz towards Thari Mirwah. They were also seen by Aga Hussain Shar and Sajjad Hussain Shar. Deceased did not return to the village that night and at about 3-00 a.m. On 7-6-2004 they came to know that he along with accused Jamshed had met with an accident on their motorcycle whereupon Ghulam Taqi and Niaz Ali went to the house of Zafar Ali the accused's father where they met the latter and others who informed them about such accident and that deceased is lying at such place. They then went to the scene and found the motorcycle parked there in the opposite direction and deceased was lying on the ground at some distance having sustained injuries on his head and other parts of his body with blood oozing from his mouth and ears. Some local villagers were also present at the scene. Upon this disclosure the complainant admonished his relations as to why they had let the deceased go with the accused as both of them had quarrelled previously to which they replied that they had reconciled with each other. Thereafter the complainant narrated the story to his elders who accompanied him to the scene where no marks of any accident were found. However they discovered one branch of a date palm which was stained with blood. This confirmed the complainant's suspicion that his son was done to death which was further fortified when the complainant party went to Zafar Ali's Quarter where his son Mumtaz was available and in the adjacent Quarter deceased's black coloured sandal (Chappal), one blood-stained hammer and lathi were found. So also there were drops of blood in the verandah and foot prints of four or five persons denoting that there had been a struggle. Mumtaz was not able to give any satisfactory reply regarding the aforementioned circumstances/items then the complainant went to the house of Zafar Ali Sher where accused Jamshed was available and upon cross-questioning he admitted that the deceased had been murdered by them due to a mistake. Thereafter the complainant party went to their elder Fakeer Sikandar Ali and narrated the aforesaid facts who said that he would summon the accused party and try to compromise the matter. However, despite his efforts, the accused party did not do so and hence today (18-6-2004) the complaint had been lodged viz., that the accused Jamshed along with four/five other culprits killed the deceased and also robbed a golden locket weighing 1- 1/2 tolas, wrist watch and cash and in order to cover up their crime had fabricated the accident.
2. ' On the basis of foregoing facts and circumstances Mr. Sher Muhammad Shar has firstly submitted that there is gross delay in lodging of the F.I.R. i.e, 11 days which has not at all been explained by the prosecution. Per learned counsel, the complainant being a Judicial Officer should have done so promptly being well aware of the consequences of delay. Secondly no recovery has been made of the alleged robbed items viz., locket, wrist watch and cash from the applicant/accused and neither the other recoveries of hammer, lathi etc. Been made at his pointation. Next per learned counsel on 20-6-2004 the complainant had filed an insurance claim on behalf of his son giving the reason of his death as accidental which supports the version of the accused. Learned counsel has also submitted that in the 161 statements of four witnesses whose houses were close to the scene of the accident, at about 0100 hours on 7-6-2004, the accused came to them, informed them about the accident and sought their help. They accompanied him to the scene and found the motorcycle as well as the deceased who was lying there. They then informed the family of the accused whose brothers Sardar and Saleem came to the scene, Saleem remained with the dead body and Sardar went to inform the family of the deceased. Per learned counsel all this happened before the complainant party arrived at the scene and the same is in consonance with the F.I.R. Further more per these witnesses the accused also had injuries which have been confirmed by his medical certificate. However, strangely enough these four witnesses have not been shown in the challan which per learned counsel is due to the influence of the complainant.
3. ' Consequently learned counsel has submitted that the extrajudicial confession allegedly made by the accused to the complainant is not sufficient to convict him in absence of independent corroboration which is missing at present. As regards the issue of last seen evidence again per learned counsel the same is subject to corroboration which is not available. In support of his submission he has relied upon Ijaz Ahmad v. The State (PLJ 1994 SC 510), 1984 PCr.LJ 1678; Mst. Riaz Bibi v. Sardar (1999 PCr.LJ 1323); Abdul Saleem v. The State (1998 SCM R 1578); Muhammad Jamil v.
4. Shaukat Ali (1996 SCM R 1685); Anwar Shah v. Sher Muhammad (1988 PCr.LJ 30), Liaquat Ali v. The State (1993 PCr.LJ 1737); Ghulam Mustafa v. The State (1985 PCr.LJ 2924); Muhammad Akbar Tariq v.
5. The State (1977 PCr.LJ 540); Pinio v. The State (1981 PCr.LJ 1007); Muhammad Ilyas v. The State (2003 M LD 1530); Gul Sher v. The State (2001 PCr.LJ 1864) and Muhammad Akbar Samo v. The State (2000 PCr.LJ 1473).
6. ' Mr. Liaquat Ali Shar appearing for the complainant has submitted that the corpse was exhumed and according to the post-mortem report two wounds were found on the backside of the chest below the scapula and so also one rib was fractured and as per the Medical Board death was unnatural and the weapon of offence was a hard and blunt substance Similarly at the scene of accident no blood-stains were found or any other evidence of the alleged accident. Only the foot- prints of one or two persons were visible per the mashirnama so also the motorcycle in question was not damaged. Secondly per learned counsel according to the 161, Cr.P.C. Statement of P.W.
7. Ayaz, the accused, deceased and one Ghulam Abbass and Sajjid had dinner during which they consumed Alcohol at the Quarter of accused and then he along with the deceased went away on the motorcycle at about 23-00 hours on 6-6-2004. Ghulam Abbass and Sajid also left whereas P.W.
8. Ayaz slept in the Quarter. In the morning Sardar the brother of the accused came to him, and enquired about the accused and he narrated the above events. He then came to know that the accident had occurred resulting in the death of the deceased.
9. ' Learned counsel has next submitted that according to the villagers who had come to the scene, the body of the deceased was cold which leads to the conclusion that the deceased had been killed elsewhere and his body thrown at the scene. Furthermore, the body was lying in a ditch about 28-32 feet below the road side but it is strange that it did not display any scratches or abrasions and neither were there any broken bones. Furthermore, there are recoveries in the shape of a lathi, iron hammer and the sandal of the deceased and according to the mashirnama the floor of the Quarter from where these recoveries were made contained dried blood patches. Finally per learned counsel, if the accused were innocent, he should have immediately after the accident informed the police station which was only a few furlongs away and also taken the deceased to the hospital at Thari Mirwah which was again not too far from the scene. However, he did not do so as this would have pointed towards his guilt since then it would have been discovered that the deceased died a violent death and not due to an accident.
10. ' In view of the foregoing submissions per learned counsel enough evidence is available to prima facie connect the accused to the crime in question viz., his extra-judicial confession, post-mortem report, last seen evidence, recoveries and the 161, Cr.P.C. Statements of the P. Ws. He has therefore, prayed that the Bail Application be dismissed. Learned counsel has relied upon Fayyaz Ali Shah v.
11. Khursheed (2002 PCr.LJ 170), Suhrab v. The State (2001 PCr.LJ 366); Abdullah Khan v. The State (2001 PCr.LJ 1679); Dildar v. The State (2002 PCr.LJ Kar. 1640); Muhammad Idrees v. The State (2004 PCr.LJ 280) and Abdul Ghafoor v. The State (1979 PCr.LJ 27).
12. ' M/s Ghulam Shabbir Shar and Abdul Qadir Shaikh have supported the submissions of Mr. Liaquat Ali Shar and so has the learned A.A.-G.
13. ' I have heard all the Learned Counsel as well as the learned A.A.-G. And my conclusions are as follows:-- ' It would be seen that at this stage the evidence available with the prosecution against the accused is in the shape of last seen evidence, the extra-judicial confession of the accused, the medical report, the 161 Cr.P.C. Statements of the P.Ws and the recoveries. Insofar as last seen evidence is concerned, per P.Ws Ghulam Taqi and Niaz Ali in the evening of 6-6-2004 the accused and the deceased went away together on the latter's motorcycle. This has been further corroborated by P.W. Ayaz that he along with accused and deceased as well as two other persons had dinner together on the night of 6-6-2004 whereafter the deceased and the accused again went away on the motorcycle at around 2300 hours. This piece of evidence has been corroborated by the medical report, according to which the deceased had received two injuries on his back which were caused by a hard and blunt substance and the same were not due to an accident. So also the recoveries in question at this stage are corroborative in nature particularly the blood- stained lathi and the dried blood patches on the floor of the accused's Quarter. Finally it would be seen that if indeed the deceased had died due to the result of an accident, the accused should have taken him to the nearby Hospital and reported the matter to the PS which was also in the vicinity which he failed to do. In view of the foregoing.Facts and circumstances in my view prima facie the accused can be connected with the crimp in question. In so far delay is concerned this can be explained, prima facie by the fact that the parties are inter-related and they were trying to comproinise the matter.
14. ' As to the cases cited by learned Counsel for the applicant on the issue of last seen evidence, it would be seen that the same are distinguishable from the facts of the present case. In Aijaz v. State (Supra), it was alleged that the deceased was last seen being followed by the accused at some distance and hence at the bail stage this could not be held against the accused to deny them bail in the absence of corroborative evidence. In Nazar 'Muhammad v. State (Supra), the accused was even not named in the F.I.R. And it was only, ,after three months of the incident that two P.Ws. Had stated for the first time that they had seen the accused in the company of the deceased. In Rasool Bux v. Syed Safdar Ali Shah (supra), the only piece of evidence was that the deceased had last been seen in the company of- the accused and consequently, a learned Single Judge of this Court came to the conclusion that without independent corroboration, this piece of evidence alone was not sufficient to refuse bail particularly when no motive was mentioned in the F.I:R. The same was the case in Ghulam Mustafa v. State (Supra), Liaqat Ali v. State (Supra). Similarly, in Tariq v. State (Supra), a learned Single Judge of this Court came to the conclusion that the last seen evidence did not associate the accused with the deceased shortly before his death and consequently the same was not sufficient to deny bail. Similarly, in Muhammad Akbar Sano v. The State (Supra), bail was allowed where the only piece of evidence was the last seen evidence and the statement of co-accused. Hence a learned Single Judge of this Court came to conclusion that without independent corroboration last seen evidence was not sufficient on its own to refuse bail.
15. As observed above, the accused was last seen in the company of deceased not only by P.Ws.
16. Ghulam Taqi and Niaz Ali in the evening of 6-6-2004 but later on that night by P.W. Ayaz whereafter the alleged accident occurred at around 1-00 a.m. The next morning. Consequently, in terms of space and time it is the accused who was last seen in the company of the deceased. In fact accused and deceased were together as the latter's version when the accident occurred but instead of taking the deceased to the hospital and informing the Police Station, the accused chose to inform his family who thereafter informed the deceased's family. In my opinion this fact alone is sufficient to disentitle the accused to bail. Furthermore, independent corroboration of the last seen evidence is available by way of recoveries and the medical report according to which the deceased did not die due to an accident but as a result of two injuries received on his back from a hard and blunt substance.
17. For all the foregoing facts and reasons I see no merit in this Bail Application at this stage and hence dismiss the same. However, in the interest of justice the learned Trial Court is directed to decide the main case as soon as possible preferably within a period of four months from today.