' A suo motu Reference against the order dated 4-7-1983 of the IInd Additional Sessions Judge Sukkur whereby he granted bail to the respondents was registered. The show-cause notices for the cancellation of bail were issued to the respondents. They have appeared.
2. One Muhammad Haji Leghari lodged the report with Police Station Deharki on 27-2-1983 at 8-15 a.m. It was stated in the report that on 26-2-1983 he was sitting in his house alongwith his brother Muhammad Sultan, Muhammad Usman and Munir Ahmed when at 6 p.m. Munshi Muhammad Sachal came end told them to accompany him for settling the account of crop of land thereupon Muhammad Sultan, Muhammad Usma n and Munir Ahmed went with Munshi Sachal. After some time Usman came running and informed Muhammad Haji that when they reached near the house of Khamiso there appeared Ghulam Kadir with double barrel gun, Lutuf Ali, Fazle, with single barrel guns and Khamiso was empty-handed. Sachal Malik told them that at their instance he has brought Muhammad Sultan. Accused told Sultan that they will kill him. On saying so, accused Ghulam Kadir fired at Muhammad Sultan who fell down and then Lutuf All and Fazle also fired at him. On knowing this Muhammad Haji came at the Wardat and found his brother Muhammad Sultan lying dead. He brought dead body of his brother to his house. He could not get any conveyance during the night, therefore went and lodged report on the next day.
3. Police during investigation found that facts of the murder of Muhammad Sultan are contrary to the F.I.R and during investigation it was revealed that Ghano, Lalkhan with guns and Lutuf All had attacked Muhammad Sultan and murdered him near the house of Khamiso therefore Police challaned the above-said persons for the murder of Muhammad Sultan.
4. Ghano, Lalkhan and Lutuf Ali gave judicial confessions before Mukhtiarkar & F.C.M. Ubauro. Police examined Babar, Lakho, Allahbux, Mocharo and also got their 164, Cr.P.C., statements recorded.
They all have stated that they heard gun reports and went towards the house of Khamiso and found accused running away with weapons. Mst.
Sukhan w/o Khamiso in 164, Cr.P.C. Statement stated that Ghano, Lalkhan and Lutuf Ali came at her house where Ghano and Lalkhan fired at Muhammad Sultan and killed him. Police also recovered gun from Ghano and Lalkhan.
5. Each accused in their confession have implicated himself as well as co-accused.
Accused/respondent Lalkhan is son of co-accused Lutuf Ali whereas Ghano is sister's son of Lutuf Ali.
6. The respondents were granted bail by the Additional Sessions Judge and concluding para. Of the order is as under:- ' Briefly, the names of accused Ghano and Lal Khan do not transpire in the F.I.R, nor there is specific allegation of any overt act against them. Their presence at the Vardat is not mentioned. Regarding accused Lutuf Ali, all the P.Ws. Whose statements under section 164, Cr.P.C. Have been recorded, have clearly stated that accused Lutuf Ali was empty-handed and no allegation and overt act has been attributed to him. According to Police investigation, accused Lutuf An had no gun in his hands; hence no recovery of any incriminating article has been made from him.
' The learned A.P.P. Has argued that he has gone through the judicial confession made by accused Ghano, Lal Khan and Lutuf Ali and the same have not been recorded in accordance with the provisions as prescribed by law. Names of Ghano and Lal Khan do not transpire in the F.I.R nor further statement of the complainant has been recorded by the investigating officer regarding their presence at the time of incident nor the statements of P.Ws. Muhammad Usman and Munir have been recorded under section 164, Cr.P.C. The learned A.P.P. Has accordingly conceded to the grant of bail to the above-named accused persons.
' I have perused all the Police papers, the judicial confessions and 164, Cr.P.C. Statement. It has further appeared to me that according to the F.I.R. The dead body of Muhammad Sultan was taken by the complainant to his house but according to the Police papers it has been recovered by Police from the house of accused Khamiso Khan on the following day of incident. The judicial confessions do not bear certificate of the Magistrate, if the same are true and voluntarily made nor reasons thereof mentioned as prescribed by law.
' For all the above-mentioned reasons and the law cited in the aforegoing paras., I find that there are sufficient grounds for further inquiry into the guilt of the above-named three accused/applicants as envisaged by section 497(2), Cr.P.C. And therefore I admit them to bail in the sum of Rs,30,000 each and P.R. Bond in the like amount."
7 It is a case of prosecution that names of respondents Ghano and Lalkhan do not appear in F.I.R.
But during investigation it transpired that they were the real culprits. Police examined more than four witnesses who heard gunshot reports and saw the accused going away after committing murder of Muhammad Sultan in the house of Khamiso and Mst. Sakhan wife of Khamiso implicated the accused. The crime weapons such as guns were recovered from Gahno and Lalkhan. All the accused gave judicial confessions wherein it is also mentioned that after consulting Lutuf Ali they committed murder.
8 Assistant Public Prosecutor as well as Additional Sessions Judge have wrongly and prematurely held that confessions were not recorded in accordance with the provisions of law. It has also wrongly been mentioned in the order that confessions do not bear certificates.
9 I have perused the papers and confessions with the assistance of Mr. A. A. Muhammadally, Assistant Advocate-General and Mr. Raja Qureshi, learned counsel for the respondents and found that in theC confession a certificate as required under section 164(3), Cr.P.C. Has been appended. It appears that Additional Sessions Judge has not cared, to read the record.
10 The Additional Sessions Judge has held that this is a case of further inquiry. On this point, I refer a case "The State v. Bago" reported in 1984 P Cr. L J 721, where the word "Further enquiry" has been discussed by Chief Justice. Mr. Justice Abdul Hayee Kureshi and his observations at page 723(c) are reproduced as under:- "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 to be one requiring further enquiry, if the present evidence is deficient or inclusive. In the instant case both. Dittal and Shahan have implicated the respondent."
From the tentative assessm ent of the evidence I am of the view that respondents did not deserve to the released on bail. Consequently the to them is hereby cancelled and they will be arrested forthwith and remanded to custody.
11 The order of the grant of the bail will prejudice the case of prosecution therefore it is suggested that this case be tried by the Sessions Judge or any other Additional Sessions Judge other than Mr. Saleemuddin.
12 The observations made in the order are of tentative nature and should not be taken into consideration while deciding the case.
Bail cancelled.