Having remained unsuccessful in obtaining their release on bail from trial Court in Crime No. 79/2018 registered under Sections 302. 147, 148, 149 and 114 of, PPC at P.S. Ghorabari. Now the applicants Rashid Chandio and Gul Muhammad are seeking their release on bail in the said crime through instant bail application.
2. Brief facts of the prosecution case as alleged in the FIR are that on 13.12.2018 at about 0350 hours, complainant Muhammad Ismail Mirbaha r appeared at Police Station Ghorabari and lodged his report alleging therein that he xesided at above address and works as driver . He and his brother resides in one and same house.
As usual, they after having dinner were sleeping in their house along with the inmates of house, meanwhile at about 10:00 p.m., three police mobiles and one Vigo vehicle appeared and parked outside the house of complainant. At the noise of vehicles, the complainant, his brother Muhammad Hashim and cousin Khuda Bux son of Muhammad Ramzan woke up and noticed everyone ASI Muhammad Siddique Panhwar I/C P.P Pirpatho, Gullu Zangiyani Baloch, Rashid Chandio, Noor Muhammad Palijo and 15/20 others police persons, who can be identified if seen again, trespassed into the house of complainant and asked them to stand up. ASI Muhammad Siddique abetted them to make straight firing and kill them, on whose instigation PC-Noor Muhammad Palijo made fire which hit the niece of complainant Abida daughter of Muhammad Hashim aged about 12 years at left arm and crossed through right side who expired. All the police officials boarded into the vehicles and went away . Thereafter , the complainant party got the dead body post mortem from Civil Hospital Makli through SHO of police station Ghorabari, appeared at police station and lodged the FIR in the above terms.
3. Learned counsel' for applicants contended that the applicants are innocent and have been falsely implicated in the instant FIR by complainant with mala fide intention and ulterior motives; that from the perusal of record, it appears that the incident took place on 12.12.2018 at 10:00 p.m., whereas FIR was lodged on 13.12.2018 at 03:50 a.m., after inordinate delay of about 5.50 hrs with due consultation and conducting; preliminary investigation by the police; that it is a matter of record that on the day of occurrence, both applicants were deployed on-security duty at the place, where Ismailia community was celebrating birthday of their religious prince vide Entry No. 13 dated 12.12.2018 at .1800 of Peerphato Polic e Post, that it is a prosecution- case that the applicants were in plain clothes. Neither , these applicants were assigned any role nor they were shown armed with weapons. Mere presence at the place of incident does not make out any case against the applica nts. In the circumstances of the case mentioned hereinabove, the case of applicants required further enquiry; that no recovery was effected from applicants; that the statement of complain ant was unreliable for the reason that there is no evidence on record that three mobiles of other area came at the place of occurrence. There is no evidence that 20 police officials were raided the house of the complainant; that the statements under Section 161, Cr.P.C. of the prosecution witnesses were recorded on 21.12.2018, after delay of about 09 days. Delay in recording the statements of witnesses by police is without furnishing any plausible explanation. It is settled law that the statements recorded by police after delay and without explanation are to be ruled out of consideration; and that there are reasonable grounds for believing that the applicants may not be guilty of the alleged offence and their case may be fall under Section 497(2), Cr.P.C. warranting further enquiry . Learned counsel for applicants in supp ort of his arguments has relied upon the cases of (1) Subeh Sadiq alias Saabo alias Kalu vs. The State and others reported in 2011 SCMR 1543 , (2) Dilmurad vs. The State reported in 2010 SCMR 1178, (3) Rahat Ali vs. The State reported in 2010 SCMR 584 and (4) Mour vs. The State reported in 2003 MLD 1728 .
4. On the other hand, learned DPG who appeared on behalf the State submitte d that there are ample material available on record which connects the present accused with the commission of the offence. He submitted that the present accused shared common intention with the co-accused and they were armed with weapon at the time of incident, hence are liable for the cause of murder of deceased Mst. Abida, who is the real niece of the complainant, therefore, the applicants do not deserve to be admitted on bail.
5. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
6. After hearing the advocate for the parties and perusing the record, it has been noticed that the only allegation against the applicants is that their presence at the spot. FIR is silent whether these applicants were armed with any weapons. Nothing on record that the applicants have caused any injury to deceased or complainant party during the whole affairs. In the circumstances of the case, the question with regard to vicarious liability of the applicants is yet to be resolved by the trial Court after proper appreciation of evidence. Nothing was recovered from the present applicants. All these aspects of the case require further probe in the matter .
7. It appears from the record that the applicants were arrested on 15.12.2018. Challan has been submitted. These applicants are no more required for investigation. After framing of charge, even no substantial progress has been made in trial. FIR was lodged on 13.12.2018, whereas the statement under Section 161, Cr.P.C. of PWs Muhammad Hashim and Khuda Bux were recorded on 21.12.2018 after 09 days of the incident without furnishing any plausible explanation. Learned counsel for 'applicants has pointed out some contradictions on material particulars of the case in between FIR, 161, Cr.P.C. and 164, Cr.P.C. statements of witnesses, so far as the case of present applicants is concerned, when these contradictions were confronted to learned DPG for explanation, he has no satisfactory answer with him.
8. As observed above investigation of the case regarding accused has already been finalized and their physical custody is not required at this stage for the purpose of investigation. Under these circumstances, applicants/accused have made out their case for further inquiry into their guilt within the purview of Section 497(2), Cr.P.C.
9. In view of the above, applicants are admitted to bail subject to furnishing their solvent surety in the sum of Rs.
3,00,000/- each and PR' bond in the like amount to the satisfaction of trial Court. From the case paper it reveals that it is the case of alleged highhandedness of the police, therefore, trial Court is directed to proceed the matter expeditiously and decide the same, preferably , within the period of 03 months after receipt of this order . No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II for perusal.
10. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants after due notice to them.