1. ' NADEEM AZHAR SIDDIQI, J.--- Applicants Mahboob Ali and Abdul Fattah, both by caste Lashari, have applied for bail in Crime No,7 of 2006 of Police Station City, Jacobabad, registered fur offence under sections 302 and 149, P.P.C.
2. ' The prosecution case, in brief, as per F.I.R.Lodged by complainant Nisar Ahmed Shaikh, is that on 1- 2-2006 his brother Abdul Ghaffar Shaikh, who used to run cable business in Jacobabad, was taken - along by one Sabir Ali Thaheem, a head constable, on the pretext of removal of some fault from the cable connection of S.H.O. Mukhtiar Ahmed Soomro and was detained at the police station. On 3-2-2006 complainant met Khuda Bux Panhwar, T.P.O. City, Jacobabad, who demanded money from him for the release of Abdul Ghaffar, which the complainant party could not pay to him. On 4- 2-2006 at 10-00 p.m. Complainant along with his maternal-uncle Muhammad Azeem and relative Habibullah went to Police Station City, where they found H.C. Sabir Ali Thaheem tying the arms of Abdul Ghaffar Shaikh and accused Inspector Khuda Bux Panhwar, TPO City, Jacobabad, S.I.P.
3. Mukhtiar Ahmed Soomro, S.H.O. C,ity,' S.I.P. Jamaluddin Jamali, S.I.O. Police Station City and P.C.
4. Nabidad Rind were also found standing there. On the following day i.e., 5-2-2006 at 4-00 a.m., the complainant came to know that the dead body of his brother Abdul Ghaffar Shaikh is lying in Civil Hospital, Jacobabad. Then the complainant along with the above named witnesses reached the Civil Hospital, Jacobabad, where they were informed that police had thrown dead body in the late hours of night. The, complainant party noticed injuries on the person of deceased Abdul Ghaffar.
5. Consequently, the complainant went to police station and lodged report to the above effect.
6. ' The bail application was dismissed by the trial Court on the ground that the applicants are police officials and were aware about the present case and, therefore, wilful absconders and that the case is falling under the prohibitory clause of section 497, Cr.P.C.
7. ' Mr. Sardar Khan Lashari, learned counsel for the applicants has contended that the names of applicants do not transpire in the F.I.R. He submitted that P.Ws. Muhammad Azeem and Habibullah have also not implicated the present appellants in the present case. He further submitted that after three days of lodgment of the F.I.R., the statements under section 162, Cr.P.C. Of two persons, namely, Aijaz Ali and Ahmed Ali were recorded, wherein the present applicants were also implicated in the case. Learned counsel further submitted that on 8-2-2006 statements under section 162, Cr.P.C. Of official witnesses, namely, H.C. Ali Bux, P.C. Abdul Hadi, P.C. Tahir Hussain Shaikh, P.C. Anwar Ali and P.C. Zulfiqar Ali Kakepoto, who were posted at Police Station City Jacobabad at the relevant time, were also recorded by the Investigating Officer, and on the basis of such statements of official witnesses co-accused S.I.P. Mukhtiar Ahmed Soomro, S.I.P.
8. Jamaluddin Jamali, H.C. Sabir Hussain Thaheem and P.C. Nabidad, who were nominated in the F.I.R., were let off and they were placed in Column No,2 of the challan. Learned counsel further submitted that co-accused Omed Ali and Abdul Lateef have been granted bail after arrest by this Court on 3- 1-2007 and the case of the present applicants is identical to that of co-accused Omed Ali and Abdul Lateef, hence they are also entitled to same concession on the principle of consistency and equal treatment. Learned counsel further submitted that co-accused Khuda Bux Panhwar, who has been nominated in the F.I.R., has also been granted bail before arrest by this Court on 2-3-2007. He relied upon the reported cases of The State v. Malik Mukhtar Ahmed Awan 1991 SCM R 322 and. Ali Nawaz v. The State 1995 PCr.LJ 1316.
9. ' Mr. Nawab Syedul Mukhtar Siddiqi, learned counsel for complainant, contended that the applicants had remained fugitive from law for sufficient period of time and they were declared proclaimed offenders by the learned trial Court. He further submitted that this is a heinous crime, wherein the brother of the complainant has been brutally murdered by the police officials by giving him severe and third-degree torture and the present applicants have been implicated on the basis of statement of P.Ws. Aijaz Ali and Ahmed Ali recorded under section 162, Cr.P.C. The learned counsel relied upon the following reported cases:--
(1) Raza Mohsin Qazilbash v. Muhammad Usman Malik 1999 SCM R 1794, (2) Qadar Mand v.
10. Muhammad Amroz 1998 SCM R 496, (3) Khial Gul v. The State 2002 PCr.LJ 1054; and (4) Hadayat Ali v. Muhammad Shahbaz 2002 M LD 83.
11. ' Mr. Mushtaq Ahmed Kourejo, learned State counsel, after going through the record has submitted that since co-accused Omed Ali and Abdul Lateef, whose case is identical to that of the present applicants, have been granted bail by this Court, therefore, he has no objection for the grant of bail to the present applicants on the rule of consistency. He relied upon the reported case of Ibrahim v.
12. Hayat Gul 1985 SCM R 382.
13. ' I have heard the learned counsel for the parties and perused the record made available before me.
14. In the F.I.R. Neither the names of the applicants were mentioned nor any role was assigned to them, nor the names of the witnesses, who implicated the applicants, have been mentioned. From perusal of the F.I.R. And the statements under section 162, Cr.P.C. Of the witnesses, namely, Aijaz Ahmed and Ahmed Ali, it appears that the witnesses have narrated a different story which is in contradiction of the contents of the F.I.R. From the statements under section 162, Cr.P.C. It appears that the witnesses had informed the complainant regarding the torture committed by the police officials upon the deceased Abdul Ghaffar Shaikh, which fact was not mentioned in the F.I.R. And this makes the statements doubtful. The statements under section 162, Cr.P.C. Were recorded on 8- 2-2006 after three days of the lodging of the F.I.R. Since the statements were recorded after delay of three days and are not in consonance of the contents of the F.I.R., the possibility of false implication of the applicants as an afterthought cannot be ruled out. The other witnesses, namely, Azeem and Habibullah examined earlier, have not implicated the present applicants. The contradiction in the F.I.R. And statements made under section 162, Cr.P.C. Creates doubt and the benefit is to be extended to the applicants. In the reported case of Syed Amanullah Shah v. The State PLD 1996 SC 241 the Honourable Supreme Court held as under:-- "So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produce'd in support of the charge, the accused should not be deprived of benefit of bail and 'in such a situation it would be better to keep him on bail than in the jail during the trial."
15. As far as the abscondence is concerned, it is not an absolute rule that the absconders are not entitled to bail merely due to abscondence. The Honourable Supreme Court in the reported case of Ibrahim v. Hayat Gul 1985 SCM R 382 has held as under:-- "It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted ion consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf.
16. However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on `bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C.
17. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
18. In this case, since the names of the applicants are not appearing in the F.I.R. And they were implicated by way of subsequent statements recorded under section 162, Cr.P.C. This is a fit case for further enquiry into the guilt of the applicants. In absence of the names of the applicants in the F.I.R., it can be said that there are no reasonable grounds for believing that applicants have committed a non-bailable offence, Furthermore, two other accused, who were also implicated through subsequent statements recorded under section 162, Cr.P.C. Were granted bail by this Court in Criminal Bail Application No,353 of 2006, vide order, dated 3-1-2007 and the principal accused Khuda Bux was also granted pre-arrest bail by this Court in Criminal Bail Application No,36 of 2007, vide order, dated 28-2-2007 and rule of consistency demands that the present applicants be also released on bail.
19. ' In view of the above position, the bail application is allowed. The applicants be released On furnishing solvent surety in the sum of Rs.2,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.
20. ' In case the applicants are found misusing the concession of bail, the trial Court is at liberty to proceed against the applicants and their sureties in accordance with law.