1. TUFAIL H. EBRAHIM, J.---Through the instant Criminal Bail Application applicants Allah Julio alias Jurial, Allah Wadhayo and Muharam alias Dholoo seek bail in a case culminated from F.I.R. Crime No,47 of 2010 registered at Police Station Panoakil for offences under sections 302:201, 114, 34, 506/2, P.P.C.
2. ' Briefly the case of prosecution is that complainant Hote Khan lodged F.I.R. 1-3-2010 at 1300 hours in respect of the incident allegedly took place on 20-2-2010, stating therein that on the day of incident at about 2100 hours he, his brother Karam and nephews Nazeer Ahmed and Punhal, while returning to their house and passing by Nabi Shah graveyard noticed on torch light that applicants/accused Allah Julio alias Jurial. Allah Wadhayo. Muharam with K.Ks. and Shabir with gun, to be standing on road. Applicant/accused Allah Wadhayo asked his companions (co- accused) to hold them and not to spare Karam and commit their murder for the reason that Karam used to demand his amount of Rs,300.000 from the applicant/accused Allah. Wadhayo.
3. Complainant Hote, his brother Karam and nephews Nazir Ahmed and Punhal were brought and, detained in a room of the house belonging to co-accused/applicant Allah Wadhayo, where other applicant/accused Muharam kept his K.K. straight on them. Allah Wadhayo and Allah Julio forcibly tied the arms and legs of Karam with rope and then lie was strangled, who expired on the spot.
4. Subsequently applicants/accused Allah Wadhayo, Allah Jurio alias Jurial and Shabir put the dead body of Karam in "Ajrak" and took it out of a room, whereas applicant/accused Muharam remained there to watch the complainant's party. After about 1/2 or 1/4 hours, the said applicants/accused came back and informed other applicant/accused that they have thrown the dead body of deceased Karam in an abandoned well by tying him with bricks. The complainant's party were kept in confinement for some days and were released on 28-2-2010, at noon time, with threats of dire consequences in case they report the offence to the police. The complainant after deliberation with Nek Mards went to P.S and lodged the F.I.R. on the next day.
5. ' The applicants/accused applied for bail but the same was declined by the learned IInd Additional Sessions Judge Sukkur vide order dated 19-5-2010, hence they moved the present bail application before this Court.
6. ' The learned counsel for the applicants/accused has argued that there is delay of 25 hours in lodging the F.I.R. and consultation and deliberation was made and the investigation had started even before the post mortem was conducted and F.I.R. was lodged and there has been inordinate delay in recording the statements of prosecution witnesses. Per learned counsel there is no motive and a false story has been made up that applicant/accused namely Allah Wadhayo owed a sum of Rs,300,000 to the deceased and the said applicant/accused had threatened the deceased. This story is unreliable as no complaint was ever lodged by the deceased. Per learned counsel there is contradiction in the statements of the prosecutions witnesses as it was an unseen incident and false F.I.R. has been lodged. Place of incident in the F.I.R. has been shown as house of Allah Wadhayo, whereas in the masheernama the place of incident has been shown as house of Allah Julio and the time of inspection has been tampered in the masheernama. At the time of recovery of dead body of the deceased a banyan was found to be put in the mouth of the deceased and there were no sign of strangulation and no independent masheers were involved at the time of recovery of the dead body. Per learned counsel false F.I.R. has been filed due to enmity and surprisingly no complaint or F.I.R. was lodged by any relatives of the complainant's party as they allegedly were missing for about eight days. No weapons were recovered nor any torture marks appear on complainants' party and they were not been medically examined although allegedly they were kept in confinement for nearly eight days. The learned counsel in support of his contentions has relied on the following case laws:-- (i)2009 Y (ii)YLR, 209
(iii) 2010 SCM R 584
(iv) 2006 SCM R 66 (v)2033 SCMR 201 (vi)NLR 1993, 791 (sic.)
(vii) 2003 M LD 145
(viii) 1998 PCr.LJ 968 ' The learned counsel of the complainant has argued that there was enmity between the applicants/accused and the deceased. Per learned counsel the delay has been explained in the F.I.R. and the complainant's party had to lodged complaint as the I/O was not recording the statements of witnesses. Per learned counsel the applicant/accused Allah Wadhayo had motive to kill the deceased as he had obtained loan of Rs,300,000 which had been refused and was threatened of dire consequences and rope and ajrak was recovered along with the dead body from the well. The learned counsel in support of his contentions has relied on the following case laws:--
(i) 2010 SCM R 1171
(ii) PLD 1994 SC 133
(iii) 1995 SCM R 1765
(iv) 2007 SCM R 482 (v)2002 PCr.LJ 1277 (vi)2003 YLR 1884
(vii) 2010 SCM R 1221 ' The learned A.P.-G. has supported the arguments of the counsel of the complainant. Per learned A.P.-G. the applicants/accused have been nominated in the F.I.R. and specific roles have been assigned to them and the prosecution case is fully supported by the statements of the witnesses and the medical report. The learned A.P.-G. has argued that the enmity itself was a motive and all the co-accused have facilitated in the crime. Per learned A.P.-G. the place of alleged incident has been correctly mentioned in the column No,4 in the F.I.R. and detail evaluation of the material on record is not required at the time of bail and only tentative assessment has to be made on the basis of available material produced and there is enough material to come to a tentative conclusion that there are reasonable grounds to believe that the applicants, accused have committed the crime.
7. I have heard the learned counsel of both the parties and the learned A.P.-G. and perused the, record and the case laws cited at the bar. The applicants/accused have been nominated in the F.I.R. with specific roles, but there is delay of 25 hours in lodging the F.I.R. and consultation and deliberation has admittedly been made prior to the lodging of F.I.R. The said incident has lasted nearly eight days but has gone unseen by any independent witnesses. At the time of recovery of dead body no independent masheers were involved. No weapons have been recovered and there are some contradictions in the F.I.R. and the statements of the complainant's party. The alleged non-payment of outstanding amount of Rs, 300,000 and threats is an isolated incident and even as per F.I.R. one month old for which no complaint was lodged by anyone. It is surpising that no complaint or F.I.R. was lodged by any relatives/ friends of the complainant party as they were allegedly confined and presumed missing for about eight days. No torture marks appear on complainants' party and they have not been medically examined to support the version of the complainant. The medico-legal report of the deceased will be evaluated at the time of trial and at this stage it cannot be safely concluded whether it supports the case of the prosecution or the applicants/ accused.
8. ' From the chain of events and reasons as discussed above, it is my prima facie view that the prosecution story is not free from doubt and there are reasonable grounds for believing that the applicants/accused have not committed this offence. The applicants/accused have made out a case of further enquiry within the meaning of section 497(2), Cr.P.C. and hence are entitled to the concession of bail in the sum of Rs,200,000 each and subject to furnishing surety and P.R. bond in the like amounts to the satisfaction of the trial court. Needless to mention that the trial court should not be prejudiced or influenced by the above discussions which are only tentative and should decide the case after taking into consideration the material available on record and evidence to be adduced at trial in accordance with law.