' SALMAN TALIBUDDIN, This is an application under section 497, Cr.P.C. Praying that the applicant/accused Manzoor Ali may be admitted to bail in Crime No,38 of 2007 Police Station, Diplo, under section 302, 34 P.P.C.
2. This Criminal Bail Application was fixed in Court on 19-6-2009 on which date the applicant Manzoor Ali was admitted to bail in the sum of Rs, 200,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court by way of a short order after hearing learned counsel for the parties.
3. The following are the reasons for the short order passed on 19-6-2009.
4. The complainant in this case is A.S.-I. Abdul Karim Incharge P.P. Kaloi, Distirct Tharparkar. His statement, as per the English translation of the F.I.R. Attached to the bail application is as under:-- "It is to inform that incharge P.P Kaloi A.S.-I. Abdul Karim's report vide roznmacha entry No,9 dated 11-11-2007 at 1800 hours received through PC Allah Dino for incorporating into 154, Cr.P.C. Book & for compliance under section 157, Cr.P.C. With Court. Its narration is as under:-- ' It is complaint on behalf of State that I am incharge A.S.-I. Of P.P. Kaloi. Today I was present at P.P.
Kaloi that Manzoor son of Din Muhammad caste Nohri r/o village Modoor Taluka Diplo came and informed at P.P. Kaloi that on eastern side at the distance of 5 KM from stop modoor on southern side of road, a dead body of unknown person was lying. On such information under entry No, 7 dated 11-11-2007 at 1630 hours along with subordinates each PC/600 Abdul Razak, PC-79 Allah Dino in official vehicle SP-6323 with driver PC-343 Khair Muhammad along with informant Manzoor Nohri, proceeded for pointed place, reached there at 1640 hours where dead body of an unknown was lying. Thoroughly he was checked and found, he had two injuries of knife on chest, one on stomach, one on right shoulder and on neck there were marks of strangulation. Lot of blood oozed.
High odorous smell was pouring in. Yellowish colour Qameez and Shalwar strained with blood, red colour sandal worn in feet. Nothing recovered by search. Nearby dead body a molded knife was lying. Dead body was of 25/30 years of age. Surrounding of dead body there was seen foot prints of two persons, one of sandal and other of chappal who went on road. Blood stained sand (wari) near dead body was sealed in iron tin and also sealed knife. Deceased's dead body's necessary papers were prepared and mashirnama of dead body was prepared in presence of mashirs each Muhammad Ayoob son of Salah Nohri and Muhammad Juman alias Jumoon son of Luqman Nohri.
Thereafter dead body was brought at P.P. Kaloi where people called to identify the dead body but not identified. People were asked to become complainant of case but nobody became prepared.
Therefore, on behalf of State, it is complained that an unknown person had been killed by unknown culprits with their connivance after causing him knife injuries at chest, stomach, shoulder and strangulated him. I am complaint. Investigation be carried out".
5. The accused was arrested during the first round of investigation conducted by the police but the case was disposed of under "A" class. However, on the application of Mst. Sodhi mother of deceased Liaqat Ali the case was reinvestigated and applicant/accused Manzoor Ali was arrested on 27-1-2009 and challan report under section 173 Cr.P.C. Was submitted against applicant/accused Manzoor Ali, co-accused Muhammad Yakoob while Accused Younus was shown as an absconder. Accused Younus subsequently surrendered before the trial Court and was granted bail as was co-accused Muhammad Yaqoob.
6. The present accused Manzoor Ali moved bail application before the learned Sessions Judge, Tharparkar at Mithi on 25-3-2009 which was rejected vide order dated 15-4-2009, hence above application to this Court.
7. In support of this bail application learned counsel for the applicants/accused submitted that; the prosecution case against the applicant/accused is false and concocted; the F.I.R. Does not show the time and date of incident i.e, murder of deceased Liaqat Ali; the name of applicant does not transpire in the F.I.R; the applicant was arrested on 27-1-2009 whereas his confessional statement under section 164, Cr.P.C. Was recorded after six days on 2-2-2009 while he was in police custody; the confessional statement carries no sanctity since it was recorded under police influence and pressure and in violation of applicable law; the statements of prosecution witnesses were recorded after considerable delay rendering the same unreliable; is as noted above after registration of F.I.R.
Re-investigation was conducted by the police and the case was disposed of in "A" class and thereafter during re-investigation applicant was arrested and falsely involved in the case at the behest of his ill wishers; there is no eyewitness of the alleged incident; there is not even any reliable evidence of the applicant being last seen with the deceased Liaqat Ali since statements of PWs.
Were recorded after considerable delay and are contradictory in respect of the date on which the deceased left the house with accused Manzoor Ali, with one witness recording that the accused was last seen with the deceased almost a year before the date on which his statement was recorded, re-investigation involving the applicant in the case is entirely mala fide; the trial of the case has not started and charge has not even been framed and that the applicant has been in custody since 27-1-2009 and is entitled to bail on the rule of consistency considering that co- accused Muhammad Yakoob and Younus have been granted bail by the learned trial Court.
8. In support of this application, learned counsel has relied upon following judgments; Muhammad Asif and another v. The State, 2009 M LD 546 where the applicants were admitted to bail on the rule of consistency since the other co-accused had been granted bail by the trial Court; Shahbaz v. The State, 2007 PCr.LJ 1555, where the incident was unseen and the complainant had implicated- the accused simply on the basis of suspicion and the applicant was granted bail on the ground that the case was one of further inquiry, Ramzan v. The State, 2007 P.Cr.LJ 1572 in which bail was granted in circumstances where there was no direct evidence against the accused and nothing incriminating was recovered from his possession; Liaqat Ali v. The State, 1989 P.Cr. LJ 2472, Jahangir v. The State, 1996 P.Cr. LJ 283, Murtaza and 2 others v. The State, 1996 P.Cr LJ 358, and Muhammad Jamil v. Shoukat Ali, 1996 SCM R 1685, in support of the proposition that last seen evidence was the weakest from the evidence; Muhammad Khan v. Moula Bakhsh, 1998 SCM R 570, where the Honourable Supreme Court held that ht credibility of a witness is looked at with serious suspicion if his statement under section 161, Cr.P.C. Is recorded with delay without offering any plausible explanation; Tooh v. The State, 1875 PCr.LJ 40, where the Court recognized that delay of over 24 hours is normally fatal to the acceptance of a judicial confession and granted bail in circumstances where it was recorded on the 3rd day of the arrest of the applicant; Budho v. The State, PLD 1965 (W.P) Karachi 76, where the statement of eye witnesses were ruled out of consideration on the ground that they were recorded 4 days after the date of the incident; Murtaza and 2 others v. The State, 1996 PCr.LJ 283, the confessional statements of the accused were disregarded on the ground that they were not recorded in accordance with applicable law; Jehangir and others v. The State, 1996 P.Cr.LJ 283, where bill was granted on the ground, inter alia, that the evidence of 'last seen' and joint extra-judicial confession could only be evaluated during trial Raza Muhammad Bhutto v. The State, 2007 P.Cr.LJ 1979, where the accused were exonerated in an enquiry conducted on the orders of the High Court but were found to be involved in the offences in a subsequent enquiry and were admitted to bail on the ground that the conflicting orders and views on record Required further enquiry and reconsideration on the basis of evidence; and Malik Dino v. The State, 2002 PCr.LJ 783, where bail was granted in circumstances where the incident was unwitnessed, the dead body was recovered after three days when it was in a decomposed condition, the F.I.R. Was recorded after the dead body had been recovered and nothing incriminating was recovered from the accused.
9. In response, learned counsel for the State acknowledged that the case had earlier been disposed of in "A" class but opposed grant of bail relying on the confessional statement of the accused.
10. Having considered the submissions of learned counsel and the material on record I am satisfied that the circumstances of this case, particularly the conflicting results of the two investigations, the delay in recording the statements of the P.Ws. And the confessional statement and the fact that the co-accused have been admitted to bail require further enquiry and reconsideration on the basis of evidence entitling the applicant to bail in the terms noted above.