' IMAM BUX BALOCH, J.---Heard Mr.Ghulam Shabbir Dayo learned counsel for the applicant and Mr.Shyam Lal Ladhani, A.P.G., for the State.
2. The facts of the prosecution case are that on 17-6-2011 while complainant Shah Muhammad along with P. Ws. Dhani Bux and Mir Hazar went to meet with his sister Mst.Meeran, while they were present, accused Pathan, Wahid Bux and Haji came there duly armed themselves with pistols. In presence of complainant and his witnesses they have committed murder of Mst. Meeran by strangulation, the complainant and his witnesses did not interfere due to the fear of the accused. It is further stated that the dead body of Mst.Meeran was taken by the accused and subsequently her dead body was recovered from Narli minor by incharge Police Post ASI Abdul Shakoor Kalhoro and after funeral ceremony of dead body of Mst.Meeran, he lodged the F.I.R, as stated above.
"Motive for murder of Mst. Meeran as stated in the F.I.R. Is that the applicants/accused have a suspicious of illicit connections of Mst.Meeran with one Sahib Dino Bhutto"
3. Learned counsel for the applicants submits that the F.I.R. Is delayed for two days and no plausible explanation is offered for such an in ordinate delay though the complainant present at the place of incident as stated in the F.I.R. He submits that from the facts of F.I.R. It reveals that the incident was unseen and subsequently when the dead body of Mst.Meeran was recovered, the complainant has lodged the F.I.R. He further submits that the complainant and prosecution witnesses Dhani Bux and Mir Hazar have sworn their affidavits before the learned trial Court to the effect that they have not seen the incident and that the applicants/accused are innocent. He has placed his reliance on the case of Muhammad Najeeb v. The State 2009 SCMR Page 448 an submits that the case of the applicants falls under the purview of further inquiry and states that the applicants may be extended concession of bail.
4. On the other hand learned A.P.-G. Submits that the post mortem report supports the averments of F.I.R. As according to the opinion of Medical Officer the cause of death is asphyxia caused by courtricting the neck of deceased by rope etc. He further submits that the recovery of dead body from Narli minor also supports the averments of F.I.R. As it is stated in the F.I.R. That after causing the death of Mst.Meeran, the applicants/accused have taken away her dead body.
5. As regards affidavits of witnesses sworn by them in the learned trial Court he submits that apart from the ocular evidence, circumstantial evidence is available on record to support the charge against the applicants/accused. He has placed his reliance on the case of Naseer Ahmed v. The State PLD 1997 Supreme Court Page 347 and submits that the applicants/accused while in custody tried to tamper the evidence by obtaining the affidavits of the witnesses, if they enlarged on bail whole prosecution evidence will be tampered by the accused as they are so influential persons that while confining in jail they have obtained the affidavits of the witnesses. He submits that at this stage the applicants/accused did not deserve the concession of bail as innocent lady was killed on some suspicions.
6. I have given my earnest consideration to the submissions of learned counsel for the parties and I have also gone through the case law cited by the learned counsel for the parties.
7. As regards delay of F.I.R., it is suffice to say that only on the ground of delay the applicants are not entitled for bail at this earlier stage. As regards the affidavits sworn before the learned trial Court, it is suffice to say that the prosecution witnesses have not come forward to swear their affidavits before this Court. The case of Muhammad Najeeb v. The State relied upon by the learned counsel for the applicants, the facts and circumstances are distinguishable from the facts and circumstances of this case. The case of Naseer Ahmed (supra) the facts and circumstances of the case are fully attracted wherein the Hon'ble Supreme Court has observed as under:-- "Be that as it may, we do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that they would still be examined in the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i.e, statements of four injured eye- witnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30-bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times; take somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused peisons with intention of creating doubt in the case of prosecution to enable the accused to get bail: The Courts have to be very careful in such case and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its own merits. In the instant case we are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the F.I.R., against him and there is positive report of the Ballistic Expert that the five crime/empties were fired from the pistol which was recovered from the petitioner and the fact that he was arrested after a delay of twenty-three days"
8. I am also of the view that the Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessm ent and actual evaluation of evidence by the trial Court. I have also gone through the case file and I find that other material are also available on record and at this stage, while tentatively assess the evidence available on record which has satisfied the mind of the Court that the case of the applicants does fall within the prohibitory clause of section 497, Cr. P C
9. For the foregoing reasons, I see no merits in the bail application which is dismissed.