1. ' An application was received by me on 13th August, 1983 from one All Nawaz, who was complainant in a case of murder against respondent, Bago, and two co-accused. A grievance was made that respondent, Bago, had been granted bail by the 2nd Additional Sessions Judge, Nawabsbah. I ordered that the application may be registered as a suo motu reference for cancellation of by the Additional Sessions Judge to respondent Bago.
2. ' The report in this case was lodged at Noshero Feroze Police Station, on 21st September, 1981 at 5 minutes past 4-00 p.m. By Ali Nawaz. It was stated by the complainant that he alongwith his maternal-uncle, deceased Muhammad and one Murad Brohi, was returning from the 'village after a Khairat and when they reached near the house of Qasim, three persons namely Bago, Shahmeer, and Ghulam Hussain, came out of the Sugarcane cultivation. It was stated that each one of them had a hatchet and they all gave hakal to deceased Muhammad, saying that he would lot escape today. Respondent Bago struck deceased Muhammad, with he sharp side of hatchet and he fell down and the remaining two accused also gave hatchet blows with the sharp side. It was stated in the F. I. R. That complainant and Murad Brohi raised cries which attracted Dittal and Shahan, who came running and saw the assailants causing injuries and also identified them. The assailants thereafter are stated to have gone away.
3. ' After the report was lodged, investigation started, and when the police party reached the scene of occurrence, they found that Murad Brohi who had accompanied the complainant Ali Nawaz and deceased Muhammad was also lying dead on the scene. A second case was also registered by the police in respect of the murder of Murad Brohi.
4. ' Mr. A. Q. Halepota, and learned Additional Advocate-General state that in all probability the case has not proceeded.
5. ' A bail application was earlier filed before the Sessions Court, Nawabshah but the same was rejected so that, an application was made before this Court. That application was made on behalf of the three accused including respondent, Bago. At the time of hearing of this application before my learned brother Mr. Justice Z. C. Valiani, the learned Advocate appearing for the accused did not press the application of respondent Bago so that the same was dismissed as withdrawn. On asking Mr. Halepota, who had appeared before Mr. Justice Z. C. Valiani, stated before me that he did not press the application, because the case of Bago did not merit the grant of bail.
6. ' I have with the assistance of learned counsel examined the order of the Additional Sessions Judge granting bail. The Judge was aware that the earlier application had been made before this Court for grant of bail which had been dismissed as withdrawn. The learned Judge in spite of the fact being within this knowledge, proceeded to consider the case of Bago on merits and granted him bail. The question now, is whether the reasons for grant of bail are justified. On a reading of the order, it would seem that Additional Sessions Judge granted bail on the following grounds :-
(i) That the prosecution witnesses were related to the deceased ;
(ii) the presence of witnesses Dittal and Shahan, appeared to be unnatural;
(iii) Dittal and Shahan were examined on the day following the lodging of the report ; and
(iv) that Murad Brohi having died, the case becomes suspicious one.
7. Coming to the 1st ground of relationship of the witnesses, one must say that mere fact of witnesses being related to deceased is no reason to disbelieve these witnesses. The name of these witnesses appears in the F. I. R. And I am informed by Mr. Abdul Sattar Shaikh, A. A.-G. That they have implicated the accused not only in their police statements, but in their statements under section 164, Cr. P. C. These witnesses are stated to be residents of a place very near to the scene of occurrence. Since cries were raised it is very natural that they were attracted and had come to the scene. In regard to their having been examined on the following day, one must look to the time factor, F. I. R. Was lodged at 4-00 p.m. And the scene of occurrence is at a distance Of 15 miles. It must have taken the police not less than 4 to 5 hours to reach that place, and by then sun must have set. It is probable that witnesses were not available at night or the police did not want to call them at that time. They have in any case been examined the next morning and that would show that there was no delay in examining these witnesses.
8. In regard to credibility of a witness, it is a matter which is best judged on the evidence and circumstances of each case. No evidence has yet been recorded to persuade the Court to disbelieve these witnesses and without any material, the Additional Sessions Judge though that these witnesses were not reliable. In fact such a venture was premature.
9. ' The Additional Sessions Judge has also stated that this was a case of "further enquiry". Perhaps, the Judge had provisions of subsection (2) of section 497, Cr. P. C. In his mind. The Judge has not explained as to what is the meaning or import of these words but what can be gathered from the tenor of this order seems to convey, that the evidence of a nature, which may ultimately be disbelieved, would turn a case as fit for grant of bail. In my view this is complete misreading of the words "further enquiry". I would not like to interpret these words in great detail, because a Divisional Bench of this Court will soon consider the import of these words as contained in section 497, Cr. P.
10. C. I would however, state that normally "further enquiry" would mean the collection of some additional material or evidence, so that the case may be termed t be one requiring further enquiry, if the present evidence is deficient o inclusive. In the instant ease both Dittal and Shahan have implicated the respondent.
11. ' Mr. A. Q. Halepota has further pointed out that the murder of Murad Brohi also reflects that the deceased in this case met his death on account of a quarrel with Murad Brohi or that the death of Murad Brohi being shrouded in mystery, would reflect and re-act on the evidence that is available against the accused respondent. In this case, I have not been able to understand this argument, it may well be that Murad Brohi may have been murdered by those persons who were interested in destroying the evidence in regard to the death of deceased in this case. But to say that the mere fact of death of Murad Brohi would go to indicate that it was a case of exercise of right of private defence would be absurd in the circumstances. In any case, it was neither the case of the prosecution nor the case of the defence that the deceased in this case lost his life on account of any fight that he had with Murad Brohi. Regard being had to the circumstances of this case, I am of the view that respondent Bago, did not deserve to be released on bail. The to him is hereby cancelled. He will be forthwith arrested and remanded to custody.
12. ' Although a point has not been raised by Mr. Halepota still I have considered the same. It is in respect of release of remaining two accused in this case on bail. So far as Bago is concerned, I find that there is nothing much to distinguish his case. However, the mere fact that co-accused have been granted bail will be no bar to the present accused being remanded to custody, more so when the earlier application by accused/respondent had been dismissed by this Court.