' SALMAN HAMID, J.---According to the contents of the application, the case, in nutshell, is that on or about 10-9-2007 at about 0730 hours, one Mr. Ghulam Muhammad, son of Mr. Muhammad Murad Chachar (complainant) lodged F.I.R. No,16 of 2007 (F.I.R.) at Police Station Sadhooja, District Sukkur under sections 302, 114, 147, 148, 149 and 337H(2) of the Pakistan Penal Code against the following persons namely 1. Shano 2. Pandho 3. Faisal 4. Wahid son of Abdul Hakeem 5. Sadoro son of Jogi 6 Ali Bux son of Muhammad Murad 7. Ismail 8. Khairpur Muhammad, both sons of Sain Bux 9. Daher son of Suhino,10. Sher Khan 11. Ghulam Muhi-u-din alias, Mehran, both sons of Karim Bux 12. Mouj Ali
13. Sabz Ali both sons of Bilawal 14. Karimdad alias Dholan and 15. Arbab son of Sadoro and three unknown persons.
2. The allegations in the F.I.R. Against the above 18 accused persons were that all of them armed with weapons came with open faces on the land of the complainant to avenge the old enmity in respect of karap. All of them made indiscriminate firing on the complainant and deceased Abdul Razzak, and Ghulam Sarwar alias Sarwar upon instigation of one Mr. Sher Khan (co-accused No,10 in the F.I.R.). As a result of such indiscriminate firing, Abdul Razzak and Ghulam Sarwar alias Sarwar lost their lives. The cousin of the complainant namely Faiz Muhammad son of Allah Warayo and Hussain son of Umer Chachar came running from the adjacent land and witnessed the above event when they also saw that all the above accused persons were running away while firing in air.
3. The record of the file would show that all the accused persons mentioned in the F.I.R. Are absconding and that the present applicant, whose name does not find mention in the F.I.R. Was arrested after the challan was submitted before the IInd Civil Judge and a Judicial Magistrate, Pano Akil wherein the applicant was shown as an absconder.
4. Earliar in time, bail application was moved before the Additional Sessions Judge (Hudood)
Sukkur which was dismissed by him in the terms of Order dated 4-11-2010.
5. Present application has been filed after above dismissal.
6. It is the case of the applicant that in the first instance as many as 15 names are available in the F.I.R. Besides the mention of three unknown persons. The name of the applicant is not available in such 15 names. No role specific or otherwise has been attributed with the applicant. It was thus argued that the applicant was not available at the time and place of incident and that he was subsequently arrested only because he belongs to the rival tribe and because of old enmity between the two tribes.
7. It was also the case of the applicant that the complainant namely Mr. Ghulam Muhammad son of Mr. Muhammad Murad Chachar and other eye-witness Mr. Hussain son of Mr. Muhammad Umer having deposed that the applicant was not present at the time and place of incident and that they did not mention the name of the applicant but the police with mala fide intention and ulterior motive implicated him in the case and that they also did not mention the name of the applicant in their respective statements, the applicant has been dragged in to the case unnecessarily and/or such is a valid and good ground for bail.
8. It was asserted that the complainant and the eye-witness having categorically deposed that applicant has nothing to do with the crime and the fact that his name also does. Not appear in the body of the F.I.R., he is entitled to bail which was denied by the court below.
9. It was also argued that the applicant was unaware about the F.I.R. And/or his implication therein and that he was all along available and present at his residence and was earning his livelihood. No attempt, ever, was made by the police for his arrest and therefore initiation of proceedings under sections 87 and 88 of the Criminal Procedure Code were of no value.
10. In support of his arguments, the learned counsel for the applicant relied upon the case of Muhammad Nawaz alias Najja v. The State (1991 SCM R 111) and the case of Allah. Dux v. Mazhar Hussain Shah and others (1979 SCM R 137).
11. This bail application was opposed and resisted by Mr. Zulfiqar Ali Jatoi the learned DP -J It was stated that the affidavits having not been filed by the legal heirs of the deceased persons, the same should not be considered and that since the applicant remained absconding for a long period of time he should not be given the benefit of bail at all.
12. It was also argued that since this is a case of double murder the bail application should not be taken lightly and the same must be dealt with stringently. In support of his contentions, learned DPG relied upon the case of Sanaullah and 3 others v. The Sate (1983 SCM R 15) and the case of Shah Zaman and 2 others v. The State (PLD 1994 SC 65.
13. Heard arguments.
14. Contents of the F.I.R. Would show that nowhere the name of the present applicant is available.
Assigning of any role in commission of offence therefore, prima facie, does not arise. It is also a matter of record that the complainant namely Mr . Ghulam Muhammad son of Mr. Muhammad Murad Chachar had identified all the absconding accused persons named in the F.I.R. It is also mentioned in the F.I.R. That the complainant could also identify other three persons, whose names he did not know. It therefore, goes without saying that when they saw the applicant they came to the conclusion that he was not present at the time and place of incident and/or he is not the person whose names the complainant had given in the F.I.R. And the applicant was also not the person whose names were not known to the complainant but were identifiable if seen again.
15. It was perhaps under these circumstances that the complainant and eyewitness sworn their affidavits, exonerating the applicant from the commission of offence for which the F.I.R. Was lodged.
16. It may be noted that the affidavits by complainant and the eye-witness are not in respect of compounding the offence but only restricted to the extent, mentioned above. Swearing of the affidavits the two deponents thereof seemingly show that a case of further inquiry has been made out more particularly when the other 18 accused persons are absconding and the fact that the name of the applicant does not appear anywhere in the body of the F.I.R. Itself.
17. In the case of Allah Bux (supra) cited by the learned counsel for the applicant, the Hon'ble Supreme Court of Pakistan did not interfere with the findings of the Lahore High Court when the bail was granted by the Lahore High Court, looking into the affidavits filed by the witnesses exculpating the applicant therein from commission of crime by appreciating the fact that it was yet to be considered by the trial Judge whether the applicant was connected with the crime. The finding of the Lahore High was found to be unexceptionable by the Hon'ble Supreme Court of Pakistan and leave was refused. It was also observed by the Hon'ble Supreme Court of Pakistan in that case that High Court having not shown to have conducted itself otherwise than in accordance with law relating to well-known principles of grant or refusal of the bail to accused persons in cases under section 302 Pakistan Penal Code did not interfere with the same. Similar is the position in the present case where the complainant and the eye-witness themselves have stated that ,applicant was not present at the place of incident and that his name also does not appear in the F.I.R. The other case which was cited by the learned counsel for the applicant was that of Muhammad Nawaz alias Najja. In that case again the eye-witnesses appeared in the
18. A court and sworn that the accused therein was not implicated in the occurrence and the bail application which was refused by the Lahore High Court was allowed by the Hon'ble Supreme.
Court of Pakistan by converting the petition into appeal. Again the thing which prevailed on the Hon'ble Supreme Court of Pakistan was the fact that since the prosecution witnesses appeared in Court and stated on oath that the accused therein was wrongly implicated, granted him the benefit of bail.
19. The citations relied upon by the learned counsel for the State under the facts and circumstances of the case do not come, to his support. In the case of Shah Zaman and 2 others the criminal appeal was dismissed on the ground that merely because no role was assigned to the accused therein was not a ground for bail if seen from the angle that it was yet to be found out who caused fatality inasmuch as that in a case of section 302 read with section 34 of Pakistan Penal Code which envisage that if a criminal act had been done by several persons in furtherance of any common intention, each of such persons would be held liable for that act in the same manner, as if it was done alone. However, in the present case the F.I.R. Would itself show that the name of the applicant does not appear anywhere in it and that the complainant and eye-witness have sworn affidavit to the effect that his name has been given because of mala fide, intention by the police. Similarly the case of Sanaullah and 3 others is again distinguishable and/or not applicable. In that case, the complainant did not file any affidavit to the effect that the accused therein was not involved in that case. However, in the present case the complainant as well as one other eyewitness have categorically mentioned that the applicant has been named either by mistake or due to mala fide of the police and he was not present at the time and place of incident on that date.
20. Above being the position; I am of the humble view that there are sufficient grounds for further inquiry. The applicant has made out a case for bail in terms of subsection (2) of section 497, Cr.P.C.
Which is granted subject to his furnishing solvent surety in the sum of Rs,200,000 (two hundred thousand) only and P.R. Bond in the like amount to the satisfaction of trial Court.