ORDER SALMAN HAMID.---The D.P.O. Larkana, and S.H.O. Police Station Women, Zarina Chandio conducted an inquiry upon an article published in daily "Kawish" of 23-2-2003, wherein it was reported that Mst. Bibi over Karap was killed by her uncle and brother (present applicants) and was thrown into the river.
2. Inquiry that was conducted by the above mentioned officials brought forth after evidence of three ladies, which shows that on 23-2-2003, Mst. Bibi was killed by her brother, and her uncle Sadoro in village Bhutta Farm on the allegation of "Karap" with his cousin Abdul Jabbar. The three ladies who recorded their evidence, were Mst. Hayat Khatoon, Mst. Zahida and Mst. Amaan Khatoon. On the basis of the enquiry necessary F.I.R No.8 of 2003 under sections 302, 201 and 34 P.P.C. At Police Station Kety Mumtaz was lodged on 9-7-2003 against the above applicants.
3. Present applicants were challaned under section 512 Cr.P.C. After receipt of the case by IV- Additional Sessions Judge, Larkana, the applicants were declared proclaimed offenders and the evidence of mashir police constable Abdul Rasheed, S.H.O. Imdad Ali Bhutto, the Complainant, S.I.O Mehtab Ali Shah and second Investigating Officer of the case Abdul Fatah Bhutto were recorded in absence of the applicants. The case was put in dormant file in terms of court's Order dated 29-5- 2006.
4. After arrest of the applicants on 6-12-2010 they were confined to jail. Bail application that was moved by the applicants before the referred Additional Sessions Judge, Larkana, and it having been dismissed in terms of Order dated 6-1-2011, present application has emanated.
5. Under the above facts and circumstances of the case, it was argued by the learned counsel for the applicants that the F.1.R on the face of it was false and concocted and it was lodged by inordinate delay of four months and fifteen days. It was also argued that the applicants are innocent and have been falsely implicated due to enmity. It was also mentioned that the F.1.R is based on an unseen and unwitnessed incident. It was also urged that medical evidence and any other direct and last seen evidence was not available against the applicants and therefore the case under section 302, P.P.C. Was not maintainable. No recovery of crime weapons was made from the applicants and that the applicants were never absconding and were all along available at their addresses. Thus it was argued that since the applicants have a good case on merits, the ground of abscondence should not come into their way.
6. Opposing the bail application the learned State Counsel argued that overwhelming evidence is available against the applicants, inasmuch as that the eyewitness and mother of applicant No.1 and sister-in-law of applicant No.2 herself has mentioned in her statement that Mst. Bibi was killed at the hands of the applicants. Similarly P.W. Zahida, the real sister of Abdul Jabbar in her statement mentioned that because of allegation of Karap, she was forced to mary brother of applicant No.1. Mst. Amna Khatoon also in her statement, confirmed killing of Mst. Bibi on. Account of Karap. It was thus argued that on the basis of statements of these three ladies, one of whom is an eye-witness and also a real mother of applicant No.1, the case of bail is far-fetched. No case for bail was made out. It was therefore, asserted that the bail application merits no consideration and the same be dismissed.
7. Arguments heard. Record perused.
8. The learned counsel for the applicants saying that there is an inordinate delay of four months and fifteen days in lodging the F.I.R. Is of no significance inasmuch that immediately after looking into the report, published in daily Kawish of 23-2-2003, inquiry was conducted and immediately thereafter F.I.R. Was lodged without further delay. Since the F.I.R. Is based on an inquiry and the inquiry itself is based on the news report of 23-2-2003, in my opinion no delay had been caused.
The ground that the applicants have been falsely implicated and that the alleged incident was unseen and unwitnessed is also not impressive when gauged from the angle that the mother of the applicant No.1 herself has categorically mentioned in the statement that she saw murder of her-daughter at the hands of the applicants. This one piece of evidence in itself is sufficient show implication of the applicants in commission of heinous crime and that too under the banner of "Karap". No mother, whose daughter has already been killed would give evidence against her on son whereby such son is found to be murderer of her to on sister. As to the ground that there is no direct last seen medical evidence available and therefore, the case does not fall within the pale of section 302; P.P.C., sufficient to observe that since the dead body of Mst. Bibi was never recovered, question of direct last seen or medical evidence under the circumstances, does not arise. The ground raised, to say the least, is frivolous and preposterous.
9. Coming to the ground that the applicants had all along been available in their respective houses and were not absconding and the refusal of bail on the ground of absconding is not encouraging and/or no ground for refusal of bail is also not available to the applicants inasmuch as that the Hon'ble Supreme Court of Pakistan time and again has observed that the ground of absconsion would not come into the way of an applicant provided he has a good case on merits. The facts of the case as unfolded hereinabove would show that the two applicants did not have good case on merits. No case of bail has been made out and therefore, the application is dismissed as such..