1. ' The present applicants have been sent up for trial for offences under sections 302, 324, 148, 149, P.P.C. Read with section 13-D, Arms Ordinance and the case is pending in the Court of Sessions Judge, Larkana fortrial. A bail application was moved by the present applicants Abdul Ghani and Ali Gul in the Court of Sessions Judge but the same was rejected by the learned trial Judge vide his order dated 4-9-1993. As such this bail application has been moved before this Court.
2. ' The brief facts as alleged in the F.I.R. By the complainant are that he is owner of a, Tractor No,0905 and the deceased Hazoor Bux Brohi was working as a driver with him. It is further alleged in the F.I.R.
3. That after working on the lands of Ali Hasan Solangi on hire basis they came and stayed in the otak of Ali Hasan Solangi and after taking night meals went to sleep. At about 1-00 a.m. The complainant got up on the knock and he awakened his driver Hazoor Bux. According to him a lantern was burning in the otak at that time and they saw five persons standing in the otak out of whom three were armed with guns and the two were armed with hatchets. On their challenge the three accused armed with guns fired at them as a result of which he sustained injury on the chest and right hand finger while Hazoor Bux fell down after receiving gunshot injuries. On cries and commotion All Hasan and other villagers of Sadik Machhi were attracted and the accused ran toward west alongwith their weapons. After that they saw that Hazoor Bux had sustained injuries on his head and blood was oozing out of his injury as a result of which Hazoor Bux driver died on the spot. Due to night time the complainant could not immediately go and lodge the report but went to the police station and lodged the report at about 5-00 a.m. On the same night at Police Station Warah. The police after usual investigation challaned the present applicants to stand trial.
4. ' The main contentions raised by Mr. Roshan All Solangi, Advocate for the applicants are that this is a night time incident and the identification of the accused on the lantern light according to him, is not possible. He has further contended that the names of the present applicants are not mentioned even in the F.I.R. And that the present applicants have been involved on account of suspicion only. He has further contended that even the features of the accused have not been mentioned in the F.I.R. His further contention is that prosecution witnesses Noor Muhammad Brohi, Kamal Khan Brohi have been introduced as eye-witnesses during the investigation after a long delay and the identification tests of the accused have been held after delay of two months of the occurrence. The main contention raised by the learned counsel for the applicants is that the abovementioned two witnesses who have been subsequently introduced as eye-witnesses reside in the same village yet their names are not mentioned in the F.I.R. And their statements by the police were recorded on 11-6-1993 while the incident had taken place on 20-5-1993. According to him had these witnesses seen the accused coming out of the otak of Ali Hasan then they would have definitely disclosed the names of the present accused to the complainant immediately and their names would have been mentioned in the F.I.R. He has further contended that in view the circumstances the evidence of these two witnesses has been fabricated only to involve the present accused in the crime and according to him it is on the basis of the statements of these two witnesses that the accused were arrested and subsequently challaned in this case. He has further contended that in view of these facts the case of the applicants falls within the scope of section 497(2), Cr.P.C. And their case requires further inquiry as to whether they had actually participated in the crime or not.
5. ' I have gone through the order passed by the learned trial Judge on the bail application of the accused and I have also heard the advocates at great length. I have also gone through the F.I.R.
6. And the evidence collected by the police during investigation. It is clear from the investigation papers that prosecution witnesses Noor Muhammad and Kamal Khan who have disclosed the names of the accused to have seen them going away by their side while they were ploughing in their land at night times and it is further alleged by them that the accused even informed them that they were going away after A committing the above offence. No explanation has been furnished by these witnesses as to why they did not disclose this information immediately to the complainant and as to why they did not give the names of the present applicants to the first.
7. Informant. For the first time these witnesses have been examined by the police on 11-6-1993 whereas the incident has taken place on 22-5-1993.
8. ' In view of the above facts I feel that the case of the present applicants requires further inquiry into their guilt as such their case comes within the purview of subsection (2) of section 497, Cr.P.C.
9. Accordingly I had granted bail to the present applicants by a short order passed on 16-1-1994 and these are the reasons for the same.