1. ' MAQBOOL BAQAR, J.-The present application under section 497(i) Cr.P.C. Has been filed on behalf of applicants/accused, Allahdad Malkani son of Malik Dino Malkani and Suleman son of Allah Wassayo; in relation to Crime No, 159 of 2005, registered at Police Station Umerkot on 22-10-2005, for offences under sections 302, 201, 109 and section 34, P:P.C. Read with section 17(4) Hudood Ordinance, 1979.
2. ' The brief facts of the case, as narrated in the above F.I.R., lodged by complainant Kailash, are that on 9-10-2005, while the complainant, his father Ramlal and brother Suresh were present at their cloth shop, accused Urs Malkani came to the shop and asked Ramlal for a loan of Rs,50,000 however, Ramlal replied that since substantial loan amount is outstanding against Urs and his relatives, he will not give any further loan. Whereupon Urs asked Ramlal to advance Rs,50,000 towards the price of Chillies, which were lying ready for delivery to Ramlal and shall be delivered to him the next day. Ramlal gave Rs,5,000 to Urs, who asked Ramlal to take delivery of the Chillies the next day. On 10-10-2005 Urs along with Suleman Noori, the applicant No,2, who is the Manager of applicant No,l, came to the complainant's shop and asked Ramlal to accompany them, along with Bardana to take delivery of the chillies. Ramlal while leaving with Urs and Suleman told the complainant that he shall come back the next day in the morning, but did not return, and instead Khamiso Mangrio, the Kamdar of applicant No,l, enquired from the complainant on telephone as to whether Ramlal has returned home, and when told that he has not, Khamiso Mangrio informed that Ramlal has been kidnapped. Whereupon the complainant's brother Suresh and cousin Dilip, rushed to the village of applicant No,l, where they met Khamiso Mangrio, who confirmed that some persons have kidnapped Ramlal, and consoled them not worry as he has informed the applicant No,l, and Ramlal shall be recovered. Meanwhile applicant No,l came to the complainant's shop and advised him not to lodge any report of the kidnapping as he will recover Ramlal, or else, the complainant will be responsible. Since Ramlal had a long standing business relationship with applicant No,l, ' the complainant trusted him and did not inform the police about the kidnapping.
3. However, applicant No,l, without the permission of the complainant, through his Manager, the applicant No,2, lodged an F.I.R. Of the kidnapping on 18-10-2005, and thereafter applicant No, 1 and Urs Malkani kept the complainant on false hopes. On 21-10-^005 Umerkot police arrested Deedar alias Qurban Panwar and his brother Ghulam Haider Panwar, both of whom confessed before the police, that on 11-10-2005 at 3-30 a.m., they along with Urs Malkani and Khamiso Mangrio, after robbing Rs,70,000 from Ramlal and removing four gold rings, by chopping of his fingers, killed him and buried his dead body near a pumping machine in the land owned by applicant No,l. Umerkot police informed -the complainant accordingly. The body was exhumed on the pointation of Deedar and Ghulam Haider. The body was identified by Suresh, and was disposed of after postmortem. The complainant further alleged that Ramlal has been killed at the instigation of applicant No,l, who also concealed the crime.
4. ' Mr. Syed Madad Ali Shah, learned counsel for the complainant submitted that the applicants have been falsely implicated in the case. He submitted that except for the allegations made by Deedar and Ghulam Haider in their confessional statements that Seth Ramlal came to the Otaq of applicant No,l, with applicant No,2, and that Seth Ramlal was killed by Urs and Khamiso Mangrio at the instigation of applicant No,l, and the alleged recovery of Ramlal's body from the land of applicant No,l, there is no evidence against the applicants. He pointed out that neither Ghulam Haider and Deedar alleged that the present applicants kidnapped Ramlal nor did they say that the applicants caused any injury to, or indulged in any violence against him, and as per their statements, although Seth Ramlal came to the Otaq of applicant No,l, with applicant No,2, but then he went away to the Otaq of Urs. Whereas applicant No,2, remained at the Otaq of applicant No, 1, and thereafter there is no mention of applicant No,2 in the entire story narrated in the confessional statements.
5. ' The learned counsel further submitted that since Ghulam Haider and Deedar had disappeared along with Seth Ramlal from the land of applicant No,l and were not traceable, the applicant No,l, through the applicant No,2, accordingly lodged F.I.R. No, 150 of 2005, and it was in pursuance of thesaid F.I.R. That Ghulam Haider and Deedar were arrested, Ramlal's gold rings were recovered from them and the dead body of Ramlal was recovered. The learned counsel further submitted that, as revealed by Ghulam Haider and Deedar in their, confessional statements, they surrendered' before the police as their family members were detained by police, and pointed out that although both of them were arrested on 22nd October, 2005, and allegedly on their pointation the body was also recovered on 22-10-2005 however, the confessional statement of Deedar was recorded on 7th November, 2005, i.e, after a delay of 16 days and such statement of Ghulam Haider was recovered on 25-10-2005. He submitted that in the circumstances the purported confessional statements cannot be said to be voluntary. He referred to the case of Arif Nawaz Khan (PLD 1991 Federal Shariat Court 53), where on account of delay of six days in recording the confessional statements, the Federal Shariat Court expressed doubts regarding such statement being voluntary.
6. ' He further pointed out that no motive has been alleged in F.I.R. No, 159 of 2005, and it was only through a further statement recorded on 2-11-2005 that the complainant alleged that the applicant No,l and Urs were indebted to the deceased in lacs of rupees. However, that too does not furnish a motive for the applicants to kill the deceased, as by killing Ramlal, the applicant No,l, could have achieved nothing with regard to his alleged financial liability, the same has neither been wiped out nor even reduced. He further submitted that although along with his affidavit, wherein the complainant has alleged that the applicant No,l was indebted to the deceased, the complainant has annexed a photocopy of a water sharing list, however, no proof/document has been annexed to the said affidavit regarding the alleged indebtedness of the present applicant.
7. ' Mr. Madad Ali Shah, further submitted that although the F.I.R. Says that the body was exhumed at the pointation of Ghulam Haider and Deedar, however, the. Mashirnama of recovery does not say so, and it is yet to be proved that the body was in fact recovered from the land of applicant No,l whereas the only allegations against the applicant No,2 is that the deceased was last seen with him. He submitted that except for the confessional statements and the allegations that the body was recovered from the land of applicant No,l, there is absolutely no evidence/material available against the applicants and on such evidence alone no conviction can be sustained, and therefore, at present there are no grounds to believe that applicants are guilty of the alleged offence. In ' support of his contention the learned counsel relied on the case of Pir Mazharul Haq v. The State (1992 PCr.LJ 1910); He contended that since the applicant No,l has been charged only for abatement of the offence and his alleged role has to be proved at the trial, the case, therefore, requires further inquiry. He submitted that admittedly the applicants were not present on the spot at the time of the occurrence and their case stood at a lower footing than the case of accused persons instigating their companions to commit the crime being themselves present on the spot. He pointed out that the F.I.R. Did not offer either the details qua the hatching of conspiracy or the names of its witnesses and referred to the cases of Muhammad Iqbal v. Abid Hussain Shah (2000 PCr.LJ 1171); Malik Ejaz Ali v. The State (2005 M LD 997) and Amanullah Shah v. The State (PLD 1996 SC 241).
8. ' Regarding Suleman, the applicant No,2, the learned counsel submitted that mere allegations that the deceased came to the Otaq of applicant No,l with Suleman without there being any corroboration of the allegations of his involvement in the murder, cannot provide the basis for his conviction and relied on the .Cases of Aijaz Ahmed v. The State (1997 SCMR 1297), Abdul Saleem v.
9. The State (1998 SCM R 1578) and Muhammad Jamil v. Shaukat Ali (1996 SCM R 1685).
10. ' On the other hand, Mr. Hidayatullah Abbasi, the learned counsel for the complainant submitted that although in the F.I.R. The applicants have been booked under sections 302, 201, 109 and section 34, P.P.C., however, since the murder has been committed through a conspiracy hatched by and between the applicants and the other co-accused, the Case also falls within the ambit of section 120-A and the applicants being party to such conspiracy, are under section 120-B, P.P.C., liable to be convicted for the offence of murder.
11. ' Mr. Abbasi submitted that it was in fact the applicant No,l who through his Munshi, the applicant No,2 and Urs, called Seth Ramlal to his land and got him murdered and then got him buried in his lands, and then in order to avoid proper investigation, in the first instance, prevented the complainant from lodging F.I.R., and subsequently, through applicant No,2, lodged a belated and, misleading F.I.R. By suppressing the true facts.
12. ' Learned counsel further submitted that as narrated by applicant No,2, in F.I.R. No, 150 of 2005, although the applicant No,2, informed the applicant No,l, that Seth Ramlal was missing from his Otaq, but instead of showing any concern or making any efforts to locate/ recover Ramlal, the applicant No,l went away to his village in Thar and came back ' after four days, and after having successfully delayed the lodging of the F.I.R., got F.I.R. No,150 of 2005 registered, without associating the complainant. Mr. Abbasi submitted that in their confessional statements co-accused Ghulam Haider and Deedar have clearly stated that it was applicant No,2 who brought Seth Ramlal to the Otaq of applicant No,1 and at about 2-00 a.m.
13. Khameso, who is the Kamdar of applicant No,1, called Ghulam Haider and Deedar, the Haris of applicant No,1, from the watercourse and asked them to bring Seth Ramlal to the Otaq of applicant No,1, and after they brought Seth Ramlal to the Otaq, Khameso called Urs, through Deedar, and then sent back Deedar and Ghulam Haider to the watercourse, and at about 3-00 a.m. Deedar and Ghulam Haider heard Ramlal screaming that he is being killed; whereupon the Deedar and Ghulam Haider rushed to the scene and saw that Seth Ramlal was lying dead on the water pump with hatchet injuries, and found Khameso, with a hatchet, and Urs with a hatchet and a pistol, standing there, both of whom forced Ghulam Haider and Deedar to dig a grave and bury the body, and after the job was accomplished, Khameso gave three gold rings, and three thousand rupees to Ghulam Haider and Deedar, and asked them not to tell any body about the incident. Mr. Abbasi further submitted that the statements further reveal that the applicant No,1 was indebted to Seth Ramlal in the sum of Rs,1,300,000 to Rs,1,400,000, and Khameso and Urs have murdered Seth Ramlal at the behest of applicant No,
1. He contended that the facts and circumstances of the case, clearly show that the present applicants have murdered Seth Ramlal through a conspiracy hatched with the co-accused and are thus not entitled to bail.
14. ' Mr. Rasheed A. Qureshi, the learned Assistant Advocate General supported Mr. Hidayatullah Abbasi, Advocate, and whilst opposing the bail application, submitted that there is very strong circumstantial evidence establishing the involvement of the present applicants in the crime. The learned Assistant Advocate General relied upon the case of Muhammad Arshad v. The State (1992 SCM R 1187).
15. ' I have heard learned counsel and perused the record of the case with their assistance.
16. Neither in the F.I.R. Nor in the confessional statement it is alleged that it was at the behest of applicant No,1, that the deceased was taken to the land of the said applicant. There is also no mention of the presence of applicant No,1 at the time of the arrival of the deceased and upto his burial, and as mentioned in the F.I.R., the complainant was told by Khamiso Mangrio that the applicant No,1 was informed of the disappearance of the deceased by Khamiso Mangrio. No overt act has been attributed to the applicant No,1. The confessing accused, without assigning any role to the applicant No,1, have merely stated that the deceased has been murdered at the behest of applicant No,1 neither have they said that application No,1, asked the co-accused to murder the deceased nor have they attributed any other act to the applicant No,1, to show his participation in the offence. Indeed, the confessing accused have alleged that applicant No,1 was indebted to the deceased to the extent of Rs,13,00,000 or 14,00,000, however, in the F.I.R., the complainant, who is a son of the deceased and also sits in his shop, has not claimed that any amount was outstanding against the applicant No,1, and has instead alleged that his father declined to lend money to Urs, saying that Urs and his relatives were indebted to the deceased. It was in connection with the applicants F.I.R. (F.I.R. No,150 of 2005) that Ghulam Haider and Deedar were arrested and the body was recovered. The confessional statement of Ghulam Haider was recorded after a delay of 16 days and that of Deedar with a delay of three days. It is indeed true that conspiracy pre-supposes, by its very nature, that it is secret and surreptitious and it is very difficult to positively prove a conspiracy, and if certain steps are taken by several persons, tending towards one obvious purpose, it can be presumed that those persons had combined . Together to bring that end, which their conduct obviously appears to attain and a criminal conspiracy can be inferred from the acts and conduct of the parties. Indeed inference of conspiracy can be drawn from facts established but mere allegations that the applicant No,1 persuaded the complainant not to report disappearance/ kidnapping of ,the deceased to the police, and the fact that the applicant No,1, after being informed of the disappearance of the deceased from his land, went away to his village and returned back after four days and only then got the F.I.R. Registered, does not, in the facts and circumstances of the case, justify refusing bail to applicant No,1 as the allegation of his involvement in the crime, in the facts and circumstances of the case requires further inquiry. Whereas, the last seen allegation against the applicant No,2, might not be sufficient to exclude the hypothesise of innocence of applicant No,2, and thus the case against applicant No,2 also requires further inquiry.
17. I, therefore, admit both the applicants to bail, subject to their furnishing surety in the sum of Rs,5,00,000 each, with P.R. Bonds in the like amount to the satisfaction of the trial, Court.