ZAFAR AHMED RAJPUT, J. By means of this common order, I intend to dispose of aforementioned both the Criminal Bail Applications as being arisen out of same FIR, both have been heard together by me.
2. Applicants/accused Raza Muhammad and Muhammad Idrees being failed to get the concession of pre-arrest bail from the Court of Additional Sessions Judge-I (MCTC), Khairpur respectively in Crl. Pre-Arrest Bail Applications Nos.1090 and 1190 of 2021 and applicant/accused Ghulam Qasim being abortive to get post-arrest bail from said Court in Crl. Post-arrest Bail Application No. 1273 of 2021, vide orders dated 31.05.2021, through these applications seek the same concession from this Court in Crime/FIR No. 55 of 2021, registered under sections 302, 324, 148, 149, 109, P.P.C. at Police Station Gambat. The applicants Raza Muhammad and Muhammad Idrees were admitted to interim pre-arrest bail by this Court vide orders, dated 04.06.2021 and 02.08.2021, respectively.
3. Precisely stated facts of the prosecution case, as narrated in the FIR, are that on 19.04.2021 at 02:30 a.m., accused (1) Faqir Muhammad son of Abdul Wahid Narejo (2) Umed Ali son of Soof Narejo (3) Siraj son of Fakir Muhammad Narejo, all armed with pistols, (4) Ali Sher son of Muhammad Shahil (5) Ghulam Qasim son of Trooh (applicant in Crl. Bail Application No.S-348 of 2021) (6) Mehar son of Karim Bux alias Dadan (7) Sikandar son of Wahid Bux, all by caste Ujjan and armed with K.K (8) Idress son of Raza Muhammad Brohi (applicant No.2 in Crl. Bail Application No. S-332 of 2021), armed with pistol, and four other unidentified co-accused armed with K.K, entered into the house of complainant's sister, namely, Mst. Rahat Khatoon. Accused Faqir Muhammad made straight fire at Mst. Rahat Khatoon which hit on her forehead and she died at the spot.
Accused Idrees fired at Wazir Ali, the nephew of the complainant, which hit on his left ear through and through who also died at the spot. Accused Siraj Ahmed fired at Mst. Niyamat Khatoon, the sister of the complainant, with intention to commit her murder which hit on her right shoulder. The cries of complainant party attracted to village people who came running there, then all the accused run away from the occurrence. As per FIR, motive behind the alleged murders/incident was annoyance of the accused Fakir Muhammad Narejo at complainant's nephew Sher Muhammad over dispute of agricultural land.
4. Learned counsel for the applicants have mainly contended that the applicants are innocent and have falsely and mala fidely been implicated in this case by the complainant for ulterior motives; that the applicant Raza Muhammad is neither nominated in the FIR by name nor he has been assigned any specific role, while mere presence of the applicant Ghulam Qasim has been shown at the occurrence in the FIR; that after lodging of the FIR, the son of applicant Raza Muhammad, namely, Muhammad Moosa moved an application to A.I.G Police Sukkur for impartial enquiry of the alleged incident, which was marked to Inspector Zulfiquar Ali Soomro, who made spot enquiry wherein he recorded statements of Muhammad Saleh Ujjan, the brother of deceased Wazir Ali, and other people of the locality who negated the version of the complainant; that in the light of the enquiry report of Inspector Zulfiquar Ali Soomro, the I/O submitted his report for the disposal of the FIR/case under cancelled "A" Class of Police Rules by releasing the applicants Raza Muhammad and Muhammad Idrees under section 497(2), Cr.P.C.; that the FIR has been lodged with deliberation and consultation by the complainant, who is an advocate, and he was not an eye-witness as per statement of Muhammad Saleh Ujjan; that the guilt of applicants; therefore, requires further inquiry entitling them for grant of bail.
5. Conversely, learned counsel for the complainant and D.P.G. have vehemently opposed the instant applications on the grounds that the applicant Muhammad Idrees is nominated in the FIR by name with specific role of making fire at deceased Wazir Ali, while applicant Raza Muhammad, who was identified later on, and applicant Ghulam Qasim shared common intention with main accused in commission of alleged offence; that the complainant is the eye-witness of the incident and he as well as injured Mst. Niyamat Khatoon have fully connected the applicants with commission of alleged offence; that police report regarding releasing the applicants under section 497, Cr.P.C. is not binding upon the Court.
6. I have heard the learned counsel for the applicants, complainant D.P.G and have perused the material available on record with their assistance.
7. The contents of the FIR are indicative of the facts that the complainant Iqbal Ahmed claiming to be the eye-witness of the incident recorded the FIR implicating as many as 12 persons for the commission of alleged offence. The motive behind the alleged murders/incident is stated to be the annoyance of the accused Faqir Muhammad Narejo at complainant's nephew Sher Muhammad over dispute of agricultural land. Present applicants are Brohi and Ujjan by caste and they are not alleged to have any relationship with said co-accused Faqir Muhammd Narejo and the complainant has not alleged anywhere the anger of the applicants, as such, prima facie, the applicants had no motive to take part in the occurrence.
8. Record reveals that in compliance, of the directives, issued by the A.I.G., Police Sukkur Region, Inspector Zulfiquar Ali Soomro conducted an enquiry wherein he, besides recording statements of the people of the locality, recorded statement of Muhammad Saleh Ujjan, the brother of the deceased Wazir Ali Ujjan, who stated in his statement that on 19.04.2021 at 0200 hrs., advocate Iqbal Ujjan told him on phone that his brother Wazir was murdered, then he reached village at 02:30 hrs and found that his brother Wazir Ali and step-grandmother Mst. Rahat Khatoon were murdered and Niyamat Khatoon, sister of his step-grandmother was injured. The dead bodies were lying at abandoned saw machine on bed/ charpai; they brought dead bodies at hospital for post-mortem.
After a while, Iqbal Ahmed reached there, he was not present at the place of incident. Thereafter, complainant, Nazeer and others made consultation with each other and lodged the FIR against persons of Brohi and Narejo community. He further stated that he doubt that complainant Iqbal Ahmed had exaggerated the facts and implicated the names of persons of Brohi and Narejo community due to old landed dispute in order to usurp the land. Raza Muhammad Brohi, Muhammad Idress Brohi and Faqir Muhammad Narejo were falsely implicated. Above statement of the brother of deceased Wazir Ali in my tentative assessment creates doubts in prosecution story/case narrated in the FIR by the complainant.
9. It is an admitted position that Inspector Zulfiquar Ali Soomro in his enquiry report, dated 06.05.2021, exonerated the applicants from commission of alleged offence. Accused have been declared innocent during investigation and, therefore, after concluding his investigation, the I/O submitted his report under section 173, Cr.P.C. suggesting disposal of the case under cancelled "A"
Class of Police Rules and he released the applicants Raza Muhammad and Muhammad Idrees under section 497(2), Cr.P.C. There is no cavil to the proposition that the opinion/report of the Investigation Officer does not bind the court in any manner yet, the courts can peep into its persuasiveness and vitality for the purpose of grant or refusal of bail tentatively to the accused (2010 PCr.LJ 1818); it can be taken into consideration as a relevant circumstances for a just decision of bail petition (2010 PCr.LJ 512); it can be taken into consideration validly while deciding a bail application, provided' the same is based upon sound material as a relevant circumstances for a just decision of bail (2009 PCr.LJ 384); it is relevant at bail stage especially when the finding is with regard to the innocence of applicants (2005 PCr.LJ 967).
10. For the foregoing facts and reasons, I am of the prima facie view that the applicants have made out a case one of further enquiry as envisaged under sub-section (2) of Section 497, Cr.P.C. Hence, these applications are allowed; the interim pre-arrest bail granted to applicants Raza Muhammad and Muhammad Idrees is confirmed on the same terms and conditions, while applicant Ghulam Qasim is admitted to post-arrest bail in aforesaid crime subject to furnishing solvent surety in the sum of Rs. 2,00,000/- and PR bond in the like amount to the satisfaction of trial Court.
11. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants/accused on merits.
However, in case the applicant(s) misuses the concession of bail in any manner, the trial Court shall be at liberty to cancel the same after giving him notice, in accordance with law.
12. Above are the reasons of our short order dated 06.09.2021.