1. ' NADEEM AZHAR SIDDIQUI, J.---The applicants are facing trial in Crime No,58 of 2004, registered at Police Station Khanpur under sections 457, 380 & 459, P.P.C. The allegations in the F.I.R. Are that on the night of 19-2-2004 at 0230 hours Ghulam Akbar woke up on noise and awakened his father Muhammad Siddique and brother Ghulam Nabi and in torchlight saw seven persons standing near the cattle and untying the cattle. The complainant in the torchlight identified (1) Ayoub, (2) Lakhe Dino and (3) Siddique, whereas other four are unknown to the complainant. It was further alleged that Ayoub and Lakhe Dino had guns while Siddique had K.K. Rifle. On raising cries by complainant, Ayoub and Lakhe Dino fired on him and he sustained injuries on his leg, right arm and other parts of body.
2. ' The applicants moved bail application before learned Sessions Judge, Shikarpur, which was dismissed on 29-10-2004. The learned Sessions Judge while dismissing the bail application observed as under:-- "I have perused the papers and carefully considered the arguments advanced before me.
3. Admittedly names of the applicants transpire in the F.I.R. They committed lurking house trespass by night besides, committing theft and caused hurts to the complainant hence they are equally responsible for the act. The accused was identified at the spot hence there was no necessity for separate identification. The delay in lodging of F.I.R. Is explained. No enmity is substantiated for falsely implicating the accused. The accused are involved in heinous crime carrying punishment of imprisonment for life and falling within the prohibition contained in section 497, Cr.P.C. I, therefore, find no merit in the bail application, which is rejected."
4. ' The second bail application was moved, which was dismissed by the learned II-Additional Sessions Judge, Shikarpur on 20-7-2005. While dismissing the bail application, the Additional Sessions Judge observed as under:-- "After dismissal of first bail application and till today no prosecution witness has been examined.
5. The R & Ps of this case were received in this Court by transfer on 12-5-2005. No fresh ground for grant of bail is made out. Application in hand is also rejected. Prosecution is however directed to produce entire material evidence as earlier as possible so that the case may be decided expeditiously. Issue B.Ws. For P.Ws."
6. ' The applicants filed Bail Application No,319 of 2005 before this Court, which was dismissed for non- prosecution on 30-8-2005.
7. ' The learned counsel for the applicants argued that there is an unexplained delay of three months in lodging the F.I.R. The identification was made in torchlight, which is the weakest source of identification. All the witnesses are closely related to the complainant and are interested witnesses and that no recovery has been made. The applicants were arrested on 15-8-2004 and since then confined to jail without trial.
8. ' The learned counsel for the applicant relied upon the following reported cases.
(1) Khudo v. The State (1995 PCr.LJ 452).
(2) The State v. Fazal Ahmed (1970 PCr.LJ 633).
(3) Mukhtar Ahmed v. The State (2000 PCr.LJ 186).
9. ' On the other hand Mr. Mushtaq Ahmed Abbasi, learned Asstt. A.-G., opposed the grant of bail on the ground that name of accused persons are appearing in the F.I.R. The accused persons were armed with gun and victim got six injuries and P.Ws. Supported the version of complainant. The learned Asstt. A.-G., has not disputed the delay in lodging the F.I.R. And has submitted that no recoveries were made.
10. I have heard the learned counsel and perused the record made available before me. The incident took place on 19-2-2004 whereas the F.I.R. Was lodged on 20-5-2004. There is no cogent explanation for such long delay in F.I.R. The victim was discharged from the hospital on 28-2-2004 and even then the F.I.R. Was lodged after lapse of more than two and half months. The reasons for delay in lodging the F.I.R. As stated in the F.I.R. Is that accused first promised to return stolen buffalo but later on refused after keeping the complainant on promise. The incident was occurred at midnight and the possibility of mistaken identity cannot be ruled out. The F.I.R. Itself is contradictory.
11. It was stated in the F.I.R. That complainant has identified the accused and on the other hand it was stated that later on father and others traced out the footprints which led them to the house of Lakhe Dino, Ayoub and Siddique. These two versions create doubts. When the accused persons were identified, there was no need of tracing their footprints and the immediate course available is to lodge the F.I.R. And to recover the buffalo. Where the doubt is created the accused is entitled to the benefit of such doubt. In the case of the State v. Fazal Ahmed, the learned D.B. Of Peshawar High Court while dealing the issue of identification in the torchlight has observed as under:-- "On behalf of the State, it was argued that the respondents were identified by the torchlight. We are not influenced with this argument, because, in our opinion, identification in the light of the torch was not considered as sufficient piece of evidence."
12. ' In another reported case of Mukhtar Ahmed v. The State the Lahore High Court while granting bail to accused in the case of Harrabah has observed that forcible removal of buffalo is a question of further inquiry and the prosecution shall have to establish this fact during the trial through the production of the convincing and confidence inspiring evidence keeping in view the rule that an accused person is innocent unless he is convicted.
13. The long delay of three months in lodging the F.I.R. Has not been properly explained and the reason given in the F.I.R. For delay is not plausible and is not free from suspicion. The injuries were caused on the non-vital parts of the body. The learned A.A.-G. Confirms that the injuries were caused on the non-vital parts of the body. The Hon'ble Supreme Court in the case of Meeran Bux v. The State (PLD 1989 SC 347) while dealing a case of cancellation of bail has held as under:-- "Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gunshot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned."
14. ' The present case is on better footing. In the reported .Matter the injured was expired but in the present case the victim is alive. The Hon'ble Supreme Court has held that since the injuries were caused on the non-vital part of the body the case was a case of further enquiry.
15. ' In view of above keeping in view the long unexplained delay in lodging the F.I.R. And keeping in view the above ruling of the Hon'ble Supreme Court I am satisfied that reasonable grounds do not appear for believing that the applicant is guilty of an offence punishable with death or transportation of life. I, therefore, grant bail to the applicants in the sum of Rs,100,000 each and the P.R. Bond in the like amount to the satisfaction of the trial Court. In case the applicants misuse the concession of bail, the trial Court may cancel the bail and take action against the applicants as well as their sureties in accordance with law.
16. ' The bail application is disposed of.