1. ' SHAHID ANWAR BAJWA,J.--- On 15-7-2011 a station diary was recorded. Informant was Muhammad Umer son of Gul Hassan and he stated that Mst: Zunaira was his niece and was married to Behram and on the fateful morning he was present in his house when his niece took an earthen pot and went to fetch water and at 8-00 a.m. Shaikh Muhammad son of Taj Muhammad Rind and Mirzo son of Hussain came to his house and inforrned him that Mst. Zunaira jumped inside the well.
2. Complainant went to the well and with the help of the villagers took out dead body of Zunaira.
3. Informant stated that he did not have any suspicion on anyone. Postmortem was conducted in terms of section, 174 Cr.P.C. Postmortem started at 05-00 .m. In the postmortem the following three injuries were stated::- "Injuries:---Incised wound about 6-7 cm away from right ear on parieto occipital area cutting bone, brain matter coming out.
4. ' Bruise on left upper area measuring 10 x 2 cm.
5. ' Abrasion about 06x06cm on lower literal.
6. ' Mark area below of lower bostal margin."
7. ' No water was found in the lungs and in the opinion of the doctor cause of death was shock and haeinorrhage and the time between postmortem and death was 20 hours.
8. ' Since the police did not register F.I.R. On 5-8-2011 an application under section 22-A, Cr.P.C. Was filed and after an order was obtained on that application F.I.R. No,85 of 2011 was registered on 7-8- 2011. In the F.I.R. The Complainant stated that on 14-7-2011 when he was . Present in his house his brother Abdul Haq and cousin Allah Dita informed him that present two applicants had committed rape of Mst. Zunaira and had also taken her photographs. Mst. Zunaira also narrated the same facts. Complainant asked Mst. Zunaira to keep silent so that they would take up the matter with other party. On the very next day dead body of Zunaira was recovered as stated in the station diary.
9. ' Learned Counsel for the applicants submitted that first challan was submitted by the police under section 322, P.P.C. However,- on an application by the complainant to the DIGP reinvestigation was ordered and the reinvestigation suggested that the complainant party had suspected illicit, relations between the deceased Zunaira and the applicants and therefore, they had killed her and thereafter concocted the story.
10. ' Learned counsel submitted that there is no iota of evidence against the present applicants beyond what is stated in the F.I.R. He submitted that the applicants are innocent and have been falsely involved because the family suspected Zunaira as having illicit relations with the applicants and they murdered her and then are trying to throw the blame on the applicants.
11. ' Learned counsel for the complainant Mr. Ishrat Ali Lohar submitted that station diary was recorded by A.S.-I. Bhai Khan Rind who is hands in gloves with the accused party and therefore, he recorded whatever he thought was in the interest of the accused party which compelled the complainant to approach the Sessions Court with an application under section 22-A, Cr.P.C. And as a result of that order F.I.R. Was recorded. Learned counsel submitted that the accused committed rape of Mst.
12. Zunaira and took her photographs with intention to blackmail her. He submitted that the Post Mortem has been conducted before registration of the F.I.R. Learned counsel further submitted that no enmity whatsoever has been pleaded between the complainant and the applicants party and the applicants are prima facie connected with the offence alleged in the F.I.R. Learned counsel relied upon 2000 SCMR 442 (Muhammad Siddique v. Imtiaz Begum and 2 others), 2008 PCr.LJ 227 (Muhammad Karim v. State), 1990 SCM R 315 (Lal Muhammad v. State).
13. ' In respect of the transfer application, learned counsel for the applicants read from the pre-arrest bail refusing order where the following observations have been recorded by the Trial Court:-- "After availing all the opportunities of their bail before arrest they accused approached in camera to the police who instead of arresting them deleted the sections 302, 376 P.P.C. And submitted challan under section 322 showing both accused absconder. Thereafter 2nd round of bail was played and again obtained protective bail by honourable High Court vide order dated 30-1-2012 and again approached to this Court by filing pre-arrest bail for the offence punishable under section 322, P.P.C., hence this order."
14. ' Learned Counsel also referred to order, dated 11-2-2012 and submitted that it is not a speaking order and shows a predisposition of the mind of the learned Judge. He therefore, submitted that the matter be transferred to any other Court. Learned counsel further submitted that in order to inconvenience and torture the applicant it has been ordered by the Trial Court that the applicants be lodged in Hyderabad Jail instead of lodging them at Umerkot. He submitted that this has been done with mala fide intention to cause as much inconvenience and torture to the applicant as possible. In respect of Transfer application, learned counsel for complainant submitted that any observations made in the bail application are tentative in nature and therefore, cannot be treated as a ground for transfer. He submitted that as far as order by which the applicants have been ordered to be lodged in Hyderabad Jail has itself given the reasons that because of enmity between the parties the applicants would be in danger if they are kept at Umerkot. Learned counsel relied upon 2009 M LD 16 (Muhammad Moosa v. Ghulam Qadir) and 2001 PCr.LJ 2066 (Ghulam Shabbir v. Nawab Shah): ' Learned Deputy Prosecutor-General supported the arguments of learned counsel for the complainant and opposed the bail application.
15. ' I have considered the submissions made by learned counsel and have also gone through the record.
16. First contention of the learned Counsel for the applicants was that the police submitted first challan under section 322, P. P. C and even after investigation ordered by the DIG the police came to the conclusion that the complainant party suspected illicit relations between deceased Zunaira and the present applicants and therefore, they killed the deceased and concocted story. Learned counsel for complainant submitted that the tradition in Sindh is that in cases of Karo Kari both the female as well as male are murdered and therefore, it seems unnatural. On the other hand, learned counsel for the applicants relied upon Dr. Muhammad Aslam v. State's case (1993 SCM R 2288). The entire report of the reported case is in the following words:-- "There is prima facie, force in the contention that the petitioner's participation in the offence is doubtful. Two different Deputy Superintendents of Police, who investigated the case, have opined that the petitioner was innocent. The police official, who brought the record of the case in this Court, has also confirmed this fact by reference to the record.
17. ' This petition is converted into an appeal and is accepted. The petitioner (Dr. Muhammad Aslam son of Hakam Khan) is allowed bail in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of the A.C., Sialkot."
18. From a perusal of the above case report, it is evident that the details of the incidents etc are not included in the reported judgment. The contention of learned counsel for applicants regarding Karo Kari tradition is again of no relevance because it would be axiomatic to say that if one is murdered and not the both, the story must not be believed.
19. Next contention of the learned counsel for the applicants was that postmortem started at 5-00 p.m. And in the post mortem the time of death is described 15/20 hours before start of the postmortem and his contention was -that therefore, in all probability the death occurred at about 11-00 a.m. Whereas the F.I.R. Alleged it at about 08-00 a.m. Contention of the learned counsel was that this creates doubt regarding story set up in the F.I.R. The contention is not- valid at the bail stage. Normal method of determining time of death is through measurement of body temperature and state of rigor mortis. If at the time of recovery, body is not in an ambient temperature but it is either with elevated or with reduced temperature the rigor mortis and drop in temperature will vary accordingly. Since dead body was recovered from a well therefore it is yet to be seen whether the time itself described in the postmortem report is of water in a well is, in July, true indicator as time of. Death . Given the fact that temperature less than the temperature of the air. Therefore, deeper appreciation of evidence is required, which exercise cannot be carried out at the bail stage.
20. ' Learned' counsel for the complainant pleaded that no enmity is pleaded anywhere. Again the contention is misconceived. ' It is too earlier to say whether the allegation of rape is true or false.
21. When illicit relations are alleged between the deceased and the applicants and in the present case it is not only illicit relations but rape that is alleged, no further requirement of enmity is required.
22. Therefore, the contention is misconceived. Similar is the position of the contention of learned counsel for complainant that the post mortem was conducted before the F.I.R. Was registered. The postmortem report itself indicates that it was part of the process under section 174, Cr. P. C .
23. Therefore, this contention is also misconceived.
24. ' Learned counsel for complainant relied upon Muhammad Siddique's case (2002 SCM R 442) where it was held that the divergent opinion of the Investigating Officers do not necessarily mean that a doubt is created. He also relied upon Lal Muhammad's case (1990 SCM R 315) where it is observed that if a prima facie case is made out against the petitioner it does not entitle him to the grant of bail. There is no cavil with any of these propositions but what is to be seen in the present case is that at this moment what is evidence available to the prosecution against the present applicants. At this stage, it may be observed that the learned counsel for the complainant contended that since the applicants have been granted first protective bail and then pre-arrest bail and because of those they were not in the hands of the police and therefore the evidence could not be collected. That may be so but what is to be seen is that what evidence is available.
25. There are two aspects of the incident: one is where it is alleged that the complainant was informed - by his cousin and brother and deceased Zunaira also D confirmed it that she had been raped by the present applicants who also took her photographs. The mobile is not available and the medical report is silent in this regard.
26. ' The second aspect of the incident is whether she jumped in the well or whether she was murdered and thrown in the well. There is no evidence whatsoever stating that the present applicants murdered her and threw her in the well. The evidence though appears to be clear that she was murdered and then-thrown in the well. This conclusion floats on the surface if one looks at the medical report and the two pieces in the medical report first there was injury on her head and brain matter was oozing out and second no water was found in the lungs. But the question is that what is evidence at this stage available to the prosecution in respect of the murder against the present two applicants.
27. ' Learned counsel for complainant submitted that A.S.-I. Bhai Khan Rind recorded: station diary and is hands in gloves with the applicants party. On the other hand learned counsel for the applicants submitted that the version in the station diary and the version in the F.I.R. Are totally different from each other. Again the question requires deeper appreciation of evidence which can only be done at the trial and not at the bail stage.
28. ' Learned Additional Prosecutor-General Sindh as well as learned counsel for the complainant besides saying that the applicants are prima facie involved in the murder have not been able to point out any piece of evidence to connect the applicants.
29. Result of the above discussion is that the case against the present applicants is still of further inquiry. Consequently, the bail application is allowed and the applicants are ordered to be admitted to hail upon their furnishing solvent sureties in the sum of Rs,300,000 (Rupees three hundred thousand) each with P.R Bonds in, the like amount to the satisfaction of the Trial Court.
30. ' The observations made by the Trial Court in the order dated 8-2-2012 have been reproduced above when the bail application after arrest was considered. All that was observed by the trial.
31. Court is as under:- ' Mr. Arjan Das learned Advocate for the complainant and Mr. Ziarif Khan learned ADPP on behalf of State vehemently opposed the bail and mainly ground that if it is false implication why the deceased lady ended her life. This is an actual crime committed by the accused and prima facie offence made out against them. The bail application is liable to be dismissed.
32. ' On dated 8-2-2012 a detailed order passed by this Court keeping in view section 322, P.P.C. In which challan has been submitted. At present I have nothing to discuss and with the same reasons earlier recorded in the said order dismiss the bail application and in the last I add here that mere delay in lodging of F.I.R. Is not enough to hold the prosecution version as concocted or doubtful, further delay in lodging of F.I.R. Can be ignored in the presence of trust worthy and convincing evidence on record, reliance is placed on 1995 SCMR 365 and PLD 2011 (SC) 107.
33. A perusal of the above, indicates that observations made by the Trial Court though tentative in nature with the bail application has been decided does or possibly can lead to apprehensions in the minds of the applicants, though they may not be very solidly based, but cannot be said to be without any basis whatsoever. Consequently, this Transfer Application is allowed and the Sessions Judge Umerkot is directed to transfer Sessions Case No,101 of 2011 either to himself or to any other Court competent to try the offence within the district.