1. ORDER MUHAMMAD TASNIM, J.---The applicants Shah Ali, Zahoor Ahmed and Munazir Ali are booked in Crime No.236 of 2009 of Police Station, Pano Akil for offences punishable under sections 302, 34, P. P. C .
2. The facts of the prosecution case as set out in the F.I.R. Are as:-- "Complaint is that I am residing at the above address. I have old dispute with Abdul Shakoor Korai, therefore, we do not talk with each other. Abdul Shakoor used to send threats to us that he will see us on 18-10-2009 at 5-00 p.m. Evening I along with my brother namely Abdul Waheed aged about 22 years and my father Muhammad Khan and uncle Muhammad Rafique both sons of Muhammad Siddique Korai went for grassing purpose in the land of one Gamtal Faqir Korai together. We were grassing from the paddy crop for cattle at 5-00 p.m., we saw that 5 persons came out of them namely Abdul Shakoor had sickle in his hand, Minazar Who was with Pistol both sons of Shah All Korai, Rio near Village Janan Korai, Taluka Pano Akil and 3 unidentified persons. Out of them, two had lathies in their hands and one had Gun in his hand to whom we can identify on seen again. Accused Abdul Shakoor. Koari oncoming abused and asked that today we will kill namely Abdul Waheed and if you come near us, we will kill you. Due to fear of weapons we stopped hack. On our seen accused Manazir Korai and 3 unknown persons who were with lathics got fallen down brother Abdul Wahced and the person who was with Gun directed his Gun on us, on our seen accused Abdul Shakoor slaughtered to my brother Abdul Waheed with sickle we raised cries and gave the name of Almighty Allah and Holy Prophet (P.B.U.H.) to accused that do not do this cruel but accused did not hear a single word of us. After slaughtering my brother accused by creating fear to us unknown accused directed Gun towards us. Thereafter all 5 accused went away towards protective band we saw that brother Abdul Waheed had cut at neck with sickle blood was oozing and was trembling. Thereafter I took my brother with the help of witnesses to Taluka Hospital Patio Akil where after got conducting post-mortem and buried deceased to consult with my ciders and after completing 3rd day ceremony now have appear that the above accused with common intention have cut my brother with sickle and have received death. I am complainant and pray for redressal."
3. Learned counsel for the applicant has submitted that specific role in the F.I.R. Has been assigned to Abdul Shakoor who is not the applicant before this Court. He further says name of applicant Munazir appears in the F.I.R. And he was armed with Pistol but no overt act was attributed to him.
4. There was no allegation that applicant Munazir caused any injury or made firing. Name of two other applicants namely Shah Ali and Zahoor Ahmed do not find place in the F.I.R. However, they were added in consequences of statements under section 161, Cr.P.C. Recorded by the police.
5. Learned counsel further says that there is delay of 4 days and 5 hours in recording F.I.R. Which has not been plausibly explained by the prosecution. He further says that statement under section 161, Cr.P.C. Of P.W. Muhammad Khan and Muhammad Rafique. Were recorded after 4 days of recording of F.1.R. Whereafter the applicant Shah All and Zahoor Ahmed were arrested. He further says that reading of the statement under section 161, Cr.P.C. No where connects the present applicants Shah Ali and Zahoor Ahmed with commission of offence nor any specific role, or overt act has been attributed to them. Learned counsel further says that this a fit case of further enquiry in terms of subsection (2) of section 497, Cr.P.C.
6. As against the above, learned A.P.G. Has submitted that F.I.R. Shows the presence of Munazir who is applicant No.3 in this bail application and if he would have restrained accused Abdul Shakoor from killing deceased Abdul Waheed the event might have not taken place. Since he was present on the scene of offence and did not act promptly to save the deceased, as such he is not entitled to bail.
7. Learned A.P.G. Further says that delay in recording of 161, Cr.P.C. Statement is not fatal for prosecution. He further says that specific role to Munazir has been assigned to the effect that he helped co-accused Abdul Shakoor in killing Abdul Waheed by holding and laying-down him on the ground, however the learned A.P.G. Could not justified the delay in holding of the F.I.R. Which is 4 days. Learned A.P.-G. Has further argued that if accused is armed with weapon and no doubt no specific role has been assigned to him he shall not be entitled for bail because his name appears in the F.I.R.
8. In support of his contentions learned A.P.G. Has relied upon the case of Rana Arshad v. Muhammad Rafique PLD 2009 SC 427, another case of Imtiaz Ahmed and others v. The State PLD 1997 SC 545, lastly 2007 M LD 1935.
9. I heard the learned counsel for the parties and have gone through the record. No doubt at bail stage deeper appreciation is not allowed and only tentative assessment is to be made to find out as to whether the applicants/accused are connected with commission of offence or not. Applying the above rule to present case, it will be seen that the names of the applicants Shah -Ali and Zahoor Ahmed do not find place in the F.I.R. And no over act has been attributed to them though their names have been added through the statement under section 161, Cr.P.C. But in that statements as well no over act has been assigned to them. With regard to applicant Munazir no doubt he was present at the scene having pistol but it is not the case of prosecution that accused Munazir caused any firearm injury, however, there is another aspect of the matter that applicant Munazir facilitated co-accused Abdul Shakoor in providing opportunity to Abdul Shakoor to commit murder of deceased Abdul Waheed. This aspect of the matter calls for further enquiry, as at this stage it cannot be said that as to whether applicant Munazir was present at the scene of offence or not, because it has been argued by the learned counsel for the applicant that Munazir and Zahoor are brothers and due to mala fide reasons both the brothers have been implicated in this case.
10. I have gone through the judgments cited by the learned A.P.-G., all the three judgments are distinguishable on facts and do not apply to the circumstances of the case. Accordingly I admit the present applicants on bail on furnishing their solvent surety in the sum of Rs.2,00,000 (Two Lacs) each and P.R. Bond in the like amount to the satisfaction of trial Court.
11. The Criminal Bail Application No.S-113 of 2010 is disposed of.