' SARMAD JALAL OSMANY, J.--- As both these criminal miscellaneous applications arise out of the same P.I.R. Being No,79 of 2005 of Police Station "A" Section, Sukkur, they are being disposed off through this common order.
2. Briefly stated the case of the prosecution is that on the date of the incident, the complainant Muhammad Rafique, his brother-in-law Akhtar Hussain, his relative Eddan and sons Muhammad Shafique and Muhammad Naveed were available inside their house and when at about 1900 hours someone rang the door bell. Naveed answered the same and then came back to inform the complainant party that two persons were standing near the door of the Otaq (guest house) whereas two others were available at the outer door of the house and were demanding to see the elders of the family all being armed with pistols. Then the complainant's elder son Shafique went outside when a commotion was heard at which the complainant party rushed out and saw the four armed persons, two of whom were identified to be accused Khawand Bux and Abdul Rasool standing near the outer door whereas the other two who were standing near the door of the guest house were unidentified. Accused Khawand Bux stated that since the fine imposed upon the complainant for deceased Abdul Sattar Mehar had not been paid, therefore, they will not be spared upon which he fired at the left side of Muhammad Shafique's chest and then Abdul Rasool fired at his back upon which his son fell down at the door. Complainant's other son Naveed then stepped forward upon which one unidentified accused fired at him which hit him on the stomach and he also fell down. The complainant party's neighbour Dilawar Malik came running to the scene when he was fired upon by the other unidentified accused which hit him on the right leg. Then the accused decamped from the scene. It was then discovered that Muhammad Shafique had succumbed to his injuries. The motive behind the crime per the complainant was the alleged enmity between him and the accused party over the custodial death of a UTP Abdul Sattar Mehar who was an accused in Crime No,2 of 1995 of Police Station Kandahari which was lodged when the complainant was posted as S.H.O. Of said police station. In pursuance thereof F.I.R. 3 of 1995 of Police Station Kandahari was lodged against the complainant but eventually the same was cancelled under "B" clause. Thereafter the matter was compromised between the parties and the complainant was burdened to pay a fine of Rs,1,50,000 to the accused party, which he later on refused as the same was forced upon him.
3. Upon investigation of the case, the police authorities filed a report before the learned trial Court recommending that as the present applicants/accused are innocent they may be discharged from the proceedings. However, during the pendency of these matters, the learned trial Court refused to accept the police version.
4. Mr. Abdul Fatah Malik appearing for applicant Manzoor Mahar in Criminal Miscellaneous No,11 of 2006, has firstly submitted that there is no dispute as regards the occurrence of the incident in question as the medical reports of the injured and the deceased corroborate the same. However, per learned counsel, neither in the F.I.R. Registered on 20-9-2005 or the 161, Cr.P.C. Statement of the complainant as well as the P.Ws. Recorded on 26-9-2005 have the present accused been either named or identified. Thereafter when applicant/accused Muhammad Ismail was arrested on 28- 10-2005, he was identified by the complainant and the P.Ws. On 29-11-2005 i.e. After 1 month and then implicated by the P.Ws. In their 164, Cr.P.C. Statements recorded on 30-11-2005 along with applicant Manzoor Mahar. Per learned counsel it is quite strange as to how the P.Ws. Came to know of Manzoor Mahar's name when it did not transpire either in the F.I.R. Or the 161, Cr.P.C. Statements, moreso when he had never been arrested. Secondly per learned counsel the 164, Cr.P.C.
Statements of the P.Ws. Were recorded after two months and ten days of the incident which raises a doubt in the matter, particularly as the present accused have been involved in such statements after the identification parade. Again the statement of P.W. Muhammad Naveed is not in line with the medical evidence as according to him the shot fired by accused Manzoor upon Dilawar Malik hit him in the lungs, whereas per the medical report, this was received in the legs. Finally per learned counsel two investigations have been carried out in the matter by independent police officials who have totally exonerated both the applicants/accused. In these circumstances learned counsel has prayed that this is a fit case for quashment of the proceedings against the applicant Manzoor Mahar as there is no evidence against him at all. Alternatively, he has prayed that at least bail earlier granted to the applicant be confirmed. In support of his submissions, learned counsel has relied upon Rais Wazir Ahmad v. The State 2004 SCM R 1167.
5. Mr. Zulfiqar Ali Sanghi, appearing for applicant Muhammad Ismail in Criminal Miscellaneous No,18 of 2006, has fully supported the arguments of Mr. Abdul Fattah Malik. He has further submitted that the identification parade of accused Muhammad Ismail was held on 29-11-2005 i.e. After 13 days of his arrest where he was picked up by the P.Ws. However, per the daily diary entries maintained at the police station all the P.Ws. Were firstly called there and thereafter taken to the Court for the purpose of identification which means they had a good look at the accused. Secondly per learned counsel no role has been given by the P. Ws. To Muhammad Ismail except that he was one of the accused. However, strangely enough on 30-11-2005 the P.Ws. In their 164, Cr.P.C.
Statements have given a positive role to applicant Muhammad Ismail. In these circumstances, per learned counsel there is hardly any possibility of the applicant's conviction based on the evidence available with the prosecution, particularly when the police have exonerated him during the investigation. He has, therefore, prayed that the proceedings against applicant Muhammad Ismail be quashed. Alternatively he has also prayed that bail should be allowed to him. In support of his submissions, he has relied upon Muhammad Sadiq Umrani v. Government of Sindh and 3 others PLD 1993 Kar. 735, Muhammad Khan v. Moula Bux 1998 SCM R 570 and Bashir Ahmad alias Bashiri v.
The State and others 2006 M LD 610.
6. Mr. Ghulam Shabbir Shar, appearing for the complainant has opposed the submissions of both the learned counsel for the applicants on the ground that the 161, Cr.P.C. Statements of the P.Ws.
Were not recorded at the behest of the complainant party as earlier so many telegrams and applications had been moved by the complainant for this purpose but they were not entertained by the police authorities. In the circumstances, per learned counsel dishonest investigation has been made and the case malafidely recommended for cancellation against the present accused which was correctly turned down by the learned trial Court. Consequently, as one of the present accused has been picked up in the identification parade and both fully involved by the P.Ws. In their 164, Cr.P.C. Statements, there is no case either for quashment or bail. In support of his submissions he has relied upon Mst. Gul Reza v. The State 2002 PCr.LJ 9, Mst. Najamun-Nisa v.
Judge Special Court constituted under Anti-Terrorism Act, 1997 2003 SCM R 1323, Abdul Ghafoor Bhatti V. Muhammad Saleem 2003 SCM R 1934, Superintendent of Police District Rawalakot v.
Shabbir Abbasi 2005 PCr.LJ 1524 and Dr. Ghulam Mustafa Solangi v. The State 2005 PCr.LJ 1638.
7. The learned A.A.-G. Has supported the arguments of Mr. Ghulam Shabbir Shar insofar as quashment is concerned on the ground that the P.Ws. Have picked out the applicant Muhammad Ismail in the identification test as well as fully implicated him as well as applicant Manzoor Mahar in their 164, Cr.P.C. Statements. According to him the delay in holding of the test etc. Can best be appreciated by the learned trial Court upon recording of the evidence. Similarly the exercise vis-a- vis the inclusion of applicant Manzoor Mahar's name in such 164, Cr.P.C. Statement when he had never been arrested should also be entrusted to the learned trial Court. However, in the facts and circumstances of the case, he has not opposed the prayer of bail for both the accused.
8. I have heard all the learned counsel as well as learned A.A.-G. As well as perused the record and my conclusions are as follows:--
9. It would be seen that admittedly, out of the four accused allegedly present at the scene only two, viz. Khawand Bux and Abdul Rasool (who are absconders) were identified by the P.Ws. At that time and they have also been implicated in their 161, Cr.P.C. Statements which means that the present applicants were the remaining two unidentified accused. Applicant Muhammad Ismail after his arrest was picked up by the P.Ws. In the identification parade and thereafter also implicated in their 164, Cr.P.C. Statements. However, it is strange as to how applicant Manzoor Mahar who had never been arrested has been nominated in such statements. Prima facie, this would only show that perhaps it was done with malice. Be that as it may, in my opinion, a firm conclusion in this regard can only be reached after the learned trial Court has recorded the evidence. In these circumstances, it cannot be said that this is a case of no evidence at all so as to justify quashment of proceedings. However, it appears that at this stage the involvement of the applicants in the crime in question is doubtful, which at the most would entitle them to bail.
10. For all the foregoing reasons, I would convert these two criminal miscellaneous applications into bail applications and would confirm bail earlier granted to applicant Manzoor Mahar on furnishing additional surety in the amount of Rs,1,50,000 (Rupees one lac fifty thousand only) along with P.R.
Bond in the same amount to the satisfaction of the A.R. Of this Court. Similarly, bail is granted to applicant Muhammad Ismail provided he submits surety in the amount of Rs,2,50,000 (Rupees two lac fifty thousand only) with P.R. Bond in the like amount to the satisfaction of the A.R. Of this Court.