' SARMAD JALAL OSMANY, J.---Briefly stated the facts of the matter per F.I.R. No,28 of 2009 of Police Station Missan, District Tando, Allahyar, registered on 15-7-2009, are that when the Complainant Loung was asleep on the roof of the Otaq (Guest House) of his Zamindar Muhammad Umar Bughio while his brother Panchoo Mal was sleeping on a Cot near the Gate, he (Complainant) woke up at about 0330 hours on 15-7-2009 at some commotion. He saw that three persons were giving Lathi, Fists and Kick blows to Panchoo Mal. Then he came down and saw one person on the light of an electric bulb and clearly identified him as Abdul Jabbar Leghari, the Complainant/accused who fired pistol shots at his brother Panchoo Mal at point blank range. P.W. Thanio and Chandoo Ram also came running to the scene when the applicant made good his escape.. Then it was discovered that Panchoo Mal had died which information was given to their Zamindar, whereafter the Police also-arrived. Upon conclusion of the formalities, the dead body was sent to Civil Hospital Tando Allahyar for post mortem and then buried. The motive for the crime is stated to be enmity between Muhammad Umer Bughio and adjoining Zamindar Allah Dino Khidri over construction of a new road and watercourse, as a result of which the latter had filed a Civil Suit. As a sequel to this enmity the Applicant had been threatening the Complainant Party and told them to discontinue their association with Muhammad Umer Bughio on pain of dire consequences.
2. Based on the foregoing facts, Mr. A.Q. Halepota appearing for the applicant has submitted firstly that the F.I.R. Is delayed, i,e, lodged, at 1700 hours whereas the incident is stated to have taken place at 0230 hours for which no explanation is forthcoming except that the. Police took some time in completing the formalities and then the body was taken for post mortem examination, where after it was buried and then the F.I.R. Lodged. Learned counsel says that such explanation is hardly plausible in .The facts and circumstances of the case as admittedly the complainant had telephoned his Zamindar where after the Police arrived at 0430 hours. This means that the Complainant was seeking instructions from his Zamindar and hence false implication could not be ruled out.
3. Learned counsel has further submitted that the incident took place at night time and hence identification is difficult with the light of bulb which in any event is not mentioned in the Mashirnama. Further according to the Police Diary the complainant had stated that he would lodge the F.I.R. After tracking the foot prints of the accused which means that he was unaware of the identity of the accused. Consequently, the identification of the accused at this stage is doubtful.
4. Next per learned counsel besides the complainant two other P.Ws. Have identified the accused per their police statements which have been recorded twice. In the first statement they say that they did not see anything in the hands of the accused but in their second statement they mention a Pistol. Nevertheless in both statements they do not say that the Accused ever used his weapon hence these contradictory statements create a reasonable doubt as to both the identification of the accused as well as his role.
5. Learned counsel has further submitted that according to the complainant two shots were fired by the accused at the deceased who was sleeping on a Cot which is falsified by the Medical Report according to which only one, shot is available on the dead body which was caused by a Pistol and the direction of firing was from downwards to upwards. Hence it is impossible that the accused while standing over the deceased could have caused him a Pistol shot in this direction.
6. Learned counsel also submitted that per the documents available on the record, the applicant/accused was admitted at Maria Medical Complex Mirpurkhas from 14-7-2010 to 18-7- 2010. This fact has been verified by the E.D.O. Health Mirpurkhas who had constituted a Board of Enquiry, for this purpose. Hence it was impossible for the petitioner to be available at both places at the same time i,e, at the scene of incident and the Hospital.
7. Finally per learned counsel there is political rivalry between the parties as the applicant supports a candidate who is opposed to Muhammad Umar Bughio and hence false implication cannot be ruled out. In support of this contention learned counsel has cited Nazar Gul vs. Islam and others (1998 SCMR 1223), i,e, mala fides can only be alleged at the bail stage and hence to be established at the trial.
8. Mr. Salahuddin Panhwar appearing for the complainant has opposed the bail plea and submitted that the applicant has been positively identified by the complainant per them. F.I.R.
Insofar as two versions of the P.Ws. Are concerned regarding their Police statements, he has submitted that in the first statement recorded on 16-7-2009 a pistol was shown in the hands of the accused which has been corroborated in = their 164, Cr.P.C. Statements. However in the second statement recorded on 31-7-2010 these P.Ws. Do not say that the accused had a pistol in his hands.
Per learned Counsel the second statement is a manipulated one as the investigation had been transferred to the Crime Branch at the instance of the Accused. He also submitted that the I.O. Who recorded the second statement has been suspended.
9. Insofar as the plea of alibi is concerned. Mr. Panhwar has submitted that this cannot be considered at the bail stage. For this proposition he has cited Omar Daraz v. The State (2004 SCMR 1019), Muhammad Ibrahim and another v. The State (2010 PCr.LJ .907) and Bahadur v. Muhammad Latif and others (1987 SCMR 788).
10. Finally learned counsel has submitted that regarding the plea of mala fides none has been established at this stage and hence mere assertion is not sufficient, for which proposition he has relied upon Riaz Ahmed v. The State (2009 SCMR 725), Rehmatullah and another v. The State (PLD 2008 Karachi 170), Allah Bachayo and another v. The State (2009 PCr.LJ 503) and Allah Bachavo and others v. The State (2009 SCMR 1352). As to the issue of delay he has submitted that it has been explained in the F.I.R. To the effect that the complainant after completion of Police formalities took the deceased to the Hospital for the purpose of Post Mortem Report and then buried him where after the F.I.R. Was lodged.
11. The learned State Counsel has supported Mr. Salahuddin Panhwar.
12. I have heard all the learned counsel and my conclusions are as follows.
13. It would be seen that in the given circumstances, the delay in lodging of the F.I.R. Of almost 15 hours has not been explained. At this stage this aspect of the matter appears to be most crucial when it is examined in the light of the fact that per the F.I.R. Itself there is enmity between the parties and prior to lodging of the F.I.R. The complainant was in touch with his landlord Muhammad Umer Bughio. Hence mala fides and false implication cannot be ruled out. Secondly, the P.Ws. In their Police Statements have given different versions regarding the role of the applicant in the Crime in question. However, it .Is significant to note that in none of these versions, it is stated that the applicant used his weapon. In these circumstances, at least the role of the applicant is a matter of further enquiry. For the foregoing reasons this Bail Application was granted vide short Order passed earlier and interim .