1. Deferred.
2. Granted subject to all just exceptions.
3. ABDUR RAHMAN FARUQ PIRZADA, J.-By this application, the applicants seek bail in case vide crime No 25 of 2004, P.S. Chak, District Shikarpur, for offences under Section 365-A, 344, 337-H(2), 148, 149, P.P.C., and 7 of Anti-Terrorism Act, 1997.
' The F.I.R. Was lodged by complainant Ghulam Sarwar Tanvir at P.S Chak on 21-3-2004 at 1700 hours. As briefly stated, the prosecution case is that the complainant owned lands which were looked after by himself. He owed Datsun which was looked after by his nephew Badshah, whereas Badaruddin was the driver. The same Datsun was plied for carrying milk from their village to Sukkur.
On 17-3-2004 same Datsun, after carrying milk to Sukkur, returned back and reached at Khahi stop, where the complainant along with P.Ws.: Ghulam, Ali Nawaz Tanvir and Wahid Bakhsh were standing. Driver Badaruddin informed them that there was some defect in Datsun, on which the complainant along with above P.Ws. Went on Datsun to Chak town, where the mechanic was not available. Thereafter they proceeded towards their village via Guddu Bridge and Sim Shakh top. At about 7-30 p.m. When they reached on the lands of Jan Muhammad Punjabi near Sim Shakh top, they saw in the headlights of Datsun 12/13 persons, who emerged out from the Sim Shakh and came in-front of the Datsun, while pointing their weapons Straight upon the complainant party.
Due to fear the driver stopped the Datsun. Out of the accused, two persons were armed with lathis, whereas the remaining accused persons were armed with Kalashnikovs, rifles and guns, while one accused was holding a torch iit his hand. The accused took control over the complainant party by force of weapons. The accused persons got Datsun driver Badaruddin, Ghulam and Badshah alight down from the Datsun and they were taken by some accused persons towards East while some accused persons made the complainant party sit there, holding them under control. After some time the remaining accused persons also went away towards East, and after walking to some distance made firing in the air. Subsequently the complainant drove the Datsun to village and narrated the above incident to the villagers. Thereafter they tracked the foot prints upto near village Mai Janvri, where they were lost. The complainant party searched for three abductees, but their whereabouts could not be known, whereafter the F.I.R. Was lodged.
' Learned counsel for applicants has submitted that the names of applicants do not transpire in the F.I.R. Nor their descriptions or features are mentioned therein. He has pointed out the delay of about four days in the lodging of F.I.R. After the incident, in that the incident occurred on 17-3-2004 at 7-30 p.m., whereas the F.I.R. Was lodged on 21-3-2004 at 5-00 p.m. No plausible explanation was tendered by the complainant for this extraordinary delay in lodging of F.I.R. The learned counsej has contended that the applicants were quite well known to complainant party, prior to incident, as such the fact that their names were not given in the F.I.R. Would clearly suggest that the case was concocted and the accused persons were malafidely involved in the case at later stage, as a result of an afterthought. He has referred to the daily diary, dated 23-6-2003 of P.S Lakhi Ghulam Shah, according to which the report was lodged by complainant Ghulam Sarwar Tanvri against three accused persons including applicants Mehmood and Atta Muhammad for their alleged attack and maltreatment of the complainant, as a result of dispute over the hand of one Mst. Shamshad Khatoon. He has also referred to the copy of Nikahnama, which shows that same Mst. Shamshad Khatoon was married to applicant/accused Mehmood on 23-6-2003. This N.C report is stated to have been disposed of as non-cognizable offence and no further action was taken in the matter. It has been contended* that the complainant remained silent for an extraordinary period of about ten months, whereafter he implicated the applicants in present case by way of making further statement on 23-1-2005. On the same date viz. 23-1-2005 the statement under section 161, Cr.P.C.
Of complainant was also recorded. Later on, both the applicants were arrested on 26-1-2005 and they were put to identification test on 29-1-2005. He has also submitted that the three abductees came to appear before the police on 10-1-2005 and their statements were recorded, however their statements were contradictory to F.I.R. On material points. According to the statements under section 164, Cr.P.C. Of all the three abductees, name of complainant has not been mentioned, to have been present at vardat on the date and time of alleged offence. Learned counsel for applicants, while supplementing the above contention, has stated that applicants are confined in custody in present case since 26-1-2005 and upto this time only examination in-chief of the complainant has been recorded before the learned trial Court, and the delay in the trial of the case, has not been caused due to any act or omission on the part of applicants. He has also argued that according to mandatory provisions of law the case before Anti-Terrorism Court has to be concluded within the stipulated period, but the case has been pending since last about three years, without any substantial progress in the case. He has relied upon case of Tahir Abbas v. The State 2003 SCM R 426; Muhammad Riaz Munna v. The State 1993 SCM R 1321; Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kar. 255 and Muhammad Jahangir Badar v. The State PLD 2003 SC 525 .
' Learned State counsel has opposed this bail application, on the ground that the complainant in his further statement as well as statement under section 164, Cr.P.C., and the prosecution witnesses in their respective statements under sections 161, Cr.P.C. And 164, Cr.P.C. Have supported the case of prosecution. He has argued that it is a serious case, wherein three persons were abducted for ransom, and the applicants are not entitled for grant of bail.
' We have carefully considered the arguments of learned counsel for applicants and learned State counsel, and have perused the relevant documents and case diaries. The F.I.R. Was admittedly lodged after the delay of about four days of the incident, for which no proper explanation was given. As per F.I.R. The names of applicants are not mentioned in die same, nor their descriptions or features are given. It is very significant that complainant Ghulam Sarwar had lodged an N.C. Report at P.S Lakhi Ghulam Shah against the applicants on 23-6-2003 wherein the names of present applicants along with their father's names, castes and their residential addresses were specifically mentioned. This factum would clearly show that the applicants were well known to the complainant party, much prior to the registration of present case. Not only this, the said daily diary of P.S Lakhi Ghulam Shah also shows that the complainant party and applicants are resident of one and same village viz. Village Drib Tanvri. According to this daily diary, there was dispute between the complainant and accused persons over the hand of one lady, namely Mst. Shamshad Khatoon; complainant wanted to marry her, however the same lady was married to applicant Mehmood. As stated by learned counsel for applicants, this N.C. Report was lodged by complainant, as the complainant wanted to deter applicant Mehmood from getting married to Mst. Shamshad Khatoon. It transpires that on the same date viz. 23-6-2003 when the N.C. Report was lodged, the Nikahnama with regard to marriage of applicant Mehmood with same lady was registered. Once this contention has. Been forwarded and prima facie supported by the above mentioned documents, then there would be no reason or justification for the complainant, not to specifically mention the names of accused persons in F.I.R. The fact that the names of accused are not given in the F.I.R., may well suggest that the accused may have been implicated as the result of previous grudge borne by complainant against accused. It is further significant to note that the complainant, after remaining silent for about ten months after the incident, chose to make his further statement on 23-1-2005 thereby implicating the applicants. This abnormal delay often months in disclosing the names of applicants, has not been explained by the complainant. In view of the above documents showing that the applicants were previously known to complainant party, the identification test, dated 29-1-2005 may not carry weight in the eyes of law. Even the statements of three abductees viz. Badaruddin, Ghulam and Badshah, which were recorded on 10- 1-2005 are apparently in contradiction to F.I.R. Without going deep into the merits of the case, at present stage the tentative assessment can be made* with regard to the apparent material discrepancies between the F.I.R. And the statements of prosecution witnesses.
' So far as the plea of hardship, as raised by the learned counsel for applicants is concerned, we may not have been inclined to consider this ground simpliciter for the purpose of bail, although the applicants are confined in jail since last about three years. However, this ground of hardship coupled with the above mentioned facts and circumstances, is being considered for deciding this application.
' It may be pertinent to refer to the case of Tahir Abbas v. The State 2003 SCM R 426 in which it was laid down as under:- "Through F.I.R. No, 147, dated 31-3-2001 a case was registered at Police Station Allama Iqbal Town under sections 395, 412 and 392, P.P.C. In which the petitioner was not named as an accused person. The complainant however subsequently on 17-4-2001 made a supplementary statement in which he involved the petitioner also. The petitioner is living in the same locality at a distance of about few yards and the parties were known, to each other therefore, there was B no explanation as to why if the petitioner was involved, he was left out when the F.I.R. Was got registered as the ground of mistake about he identity of the petitioner prima facie is not available. The case of the petitioner is of further. Inquiry therefore, this petition is converted into appeal, and the same is allowed, order, dated 11-1-2002 passed by the High Court impugned in this petition set aside and the petitioner is granted bail in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial court. "
' In the case of Muhammad Riaz Munna v. The State 1993 SCM R 1321 the bail was granted to accused, on the ground of delay in F.I.R. As well as delay in recording statements of P.Ws. Under section 161, Cr.P.C. With regard to the contention of learned counsel for applicants about delay in trial of the case, the reference thay be made to the case of Ghulam Abbas alias Abbasi and others v. The State PLD 2005 Kar. 255 and Muhammad Jahangir Baddar v. The State PLD 2003 SC 525.
' In view of the foregoing facts and circumstances, we are inclined to allow concession of bail to applicants. Accordingly , this application is allowed and the applicants may be released on their furnishing solvent sureties in the sum of Rs,2,00,000 each and P.R bonds in the like amount to the satisfaction of the trial Court. It may be needless to say that the above observations are purely tentative in nature, and the learned trial Court shall not be influenced in any manner while finally deciding the case.