' This bail application is moved on behalf of applications, Irshad All son of Ghulam Abbas and Zahid Hussain son of Muhammad Ali, who are involved in a case in Crime No,20/92 of Police Station Warah for offence under section 376/328/34, P.P.C. Read with section 10 of Zina Ordinance. Their bail application was rejected by the learned Sessions Judge, Larkana vide his order, dated 21-3- 1992. As such they have now repeated the bail application before this Court with the same prayer.
2. The prosecution case is that on 9-2-1992 the complainant lodged report at Police Station Warah stating that on the previous day at 7-30 p.m. Nizam, Imdad alias Imdu alongwith their friend Zulfiqar Mangi came at his shop in Warah as the complainant had visiting terms with Nizam and Imdad. On their request the complainant allowed them to stay for a night in his house as they intended to leave by morning. The complainant took them to his house where he got a room on the western side vacated for their stay while the Complainant and his family members were to sleep in the other room on the eastern side. After serving meals and while they were talking it is stated that co-accused Nizam gave Supari to the complainant saying that it was sent by his mother to be given to the complainant. Complainant Gulab took the Supari and gave the same to his wife Mst.
Khanzadi, daughter Umedan and sons Akbar and Sikandar. All the inmates of the house ate Supari and then went to sleep. On 9-2-1992 at about 10 or 11 a.m. When the complainant, Gulab woke up he was still feeling dizzy but he saw that the other inmates of the house were sleeping who were all unconscious. The clothes of his unmarried daughter Mst. Umedan aged 16/17 years were put off and she was bleeding. The complainant realised that all this has been done by the three accused.
He, therefore, called his neighbours, Zulfiqar and Abdul Fateh to whom he narrated the facts. He moved his wife, daughter and sons to the Taluka Hospital Warah and after leaving them in the hospital, he went to lodge the report at Police Station Warah. After registration of the case police took up investigation and arrested co-accused Nizam on 29-2-1992. Said accused Nizam made judicial confession and on the basis of the said judicial confession the present applicants were arrested.
3. I have heard Mr. M. Ilyas Khan, Advocate for the applicants and Mr. M. Zubair Qureshi, learned counsel for A.-G. For State. Learned counsel for the applicants has argued that both the applicants have been falsely implicated by co-accused Nizam. Apart from which there is no other witness against the applicants. He has further argued that even the complainant was not sure who are the actual accused apart from main accused Nizam. On the other hand learned counsel for the State has opposed this bail application on the ground that the accused have been implicated by main accused Nizam in his judicial confession.
4. I have carefully considered the points raised by the parties and have also gone through the material available on record. It is to be noted that according to the complainant as given to the F.I.R., two of the accused namely Nizam and Imdad were not only known to the complainant by name and face, but instead the complainant had visiting terms with them. It is, therefore, an admitted position that apart from main accused Nizam, the other two accused were Imdad and their friend Zulfiqar. It is surprising to note that this accused Imdad has been let off by the police on the ground of alibi on the strength of statements of witnesses recorded by the police as well as on their 164, Cr.P.C. Statements. Even Zulfiqar has been let off by the police. It may be noted that main accused Nizam was arrested on 29-2-1992. Thereafter the judicial confession was recorded by the Mukhtiarkar and F.C.M., Warah. In this judicial confession instead of naming Imdad and Zulfiqar as his co-accused, accused Nizam implicated the present applicants and let off the actual accused Imdad and Zulfiqar. As such the question which arises now is that whether the co-accused who had accompanied accused Nizam at the time of Wardat were Imdad and Zulfiqar or the present applicants, Irshad and Zahid. Furthermore, the identification parade was also held on 7-3-1992 in which the complainant has picked out the present applicants, Irshad and Zahid Hussain. This obviously is false identification on the face of it, as atleast one of the co-accused named in the F.I.R. Was Imdad and already known to the complainant and it is surprising how the complainant has identified the present applicants, Irshad and Zahid Hussain. Furthermore, there is no reason on the record as to why Imdad and Zulfiqar were not joined in the identification parade, and also why the complainant had not implicated them.
5. Taking into consideration all the circumstances of the case in view of my above discussion I am of the considered view that case of the applicants requires further inquiry within the meaning of section 497(2); Cr.P.C. Accordingly bail is granted to the applicants on their furnishing one surety in the sum of Rs,75,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.