1. ' Applicants Ajmal and Mitho alias Muhammad Ismail seek bail in Crime No,104/95 of P.S. Daharki registered under sections 302 and 34, P.P.C.
2. ' The relevant facts of this application are that on 1-8-1995 complainant Khuda Bux lodged F.I.R.
3. Stating therein that he owns some agricultural land which he cultivates himself. About 7-8 months back Foujan alias Afzal Sher and others were murdered in which Barkat Ali and Bakhit Ali Pitafi were challaned. Share suspected the complainant party to be invoked in the said murders. On the night of the incident at about 8-00 p.m. Complainant's nephews Akram and Riaz alias Qaiser were going from Daharki towards their village on donkey cart whereas complainant his nephew Aziz, cousin Allah Dito and aunt's husband Qalandar Bux were following them on another donkey cart and when they reached at Jholay Lal Cotton Factory immediately there came fires from left side of the road.
4. Complainant party identified them on the electric light to be applicants Ajmad son of Agan, Mitho alias Muhammad Ismail son of Quindo and co-accused Anwar, Mitho son of Agan, Hamzo, Bakhtoo, Gono, Akmal, Sahib Dino, Sharif, Papu and Rasheed. Out of them applicant Ajmal was armed with rifle, applicant Mitho with gun the weapons of some of them could not be identified as not clearly seen and some one were empty-handed, whereas co-accused Bakhto, Mitho, Papu and Rashid had, guns. Applicant and the other accused armed with weapons started firing upon them which hit complainant's nephews Karam and Riaz alias Qaisar. Complainant party stopped the carts and went running towards the injured and saw both of them had sustained fire-arm injuries in their legs and were bleeding and were struggling for life within their sight. They were removed for immediate treatment and injured Karam died on the way whereas injured Riaz alias Qaisar expired in the hospital. Leaving the P.Ws. Over the dead bodies complainant went to lodge F.I.R. That about 7-8 months prior Foujo (sic) all six persons were murdered in which case their relatives were challaned and Shars were under impression that Pitafies have killed them and in order to avenge the same they have killed Karam and Riaz alias Qaisar.
5. ' Mr. Abdul Fateh Malik for applicants and Mr. Abdul Ghani Shaikh, Addl. A.-G. For State have been heard at length.
6. ' It is contended by Mr. Malik that credibility of F.I.R. Is shaken particularly when 10 out of the 12 persons nominated in the F.I.R. Are found innocent and have been let off by the police and their names have been kept in Column 2 of the challan and the benefit of which also goes in favour of the applicants as majority of the accused are found falsely implicated. He next argues that co- accused Papu alias Saeed Ahmed, Rasheed Ahmed, Muhammad, Shareef, Sahibdino, Muhammad, Mithal, Bakhtoo alias Bakhit Ali, Akmal Hussano alias All Hassan, Muhammad Anwar and applicants Ajmal and Mitho were arrested on 2-9-1995. Applicants allegedly confessed their guilt and their confessional statements were recorded on 3.9-1995 at 10-00 a.m. Before the Mukhtiarkar & F.C.M., Daharki in which they confessed that they alone, have committed the offence and it is on the basis of their confessional statements remaining accused were let off. Learned counsel argues that confessional statement is defective and cannot be relied upon as the learned Magistrate after recording the same handed over the custody of applicants to the ponce and police made recoveries of rifle from applicant Ajmal and gun from applicant Mitho alias Muhammad Ismail. He lastly submits that the recoveries of rifle and gun are foisted against the applicants. He places reliance on the case-law reported in 1982 SCRM 955, 1993 SCM R 1822, 1994 PCr.LJ 2139, 1995 SCM R 1178 and 1996 PCr.LJ 783.
7. ' On the other hand Mr. Abdul Ghani Shaikh learned Addl. A.-G. Vehemently opposes the arguments advanced by the applicants' counsel and urges that every criminal case is to be decided on its own facts, and it is hardly possible that the facts of one case coincide with the facts of other case.
8. He argues that the applicants in their confessional statements have admitted the guilt and have stated that they have murdered the deceased of this case therefore they cannot deserve to be released on bail. He further argues that not only complainant but all the eye-witnesses in their 161, Cr.P.C. Statement have fully implicated the applicants and the let off accused, with the commission of the offence therefore above let off accused have been wrongly termed to be innocent by the investigating officer. He lastly argues that the rifle from applicant Ajmal, gun from Mitho have been secured during investigation. Since recoveries have been effected from the accused so there is sufficient evidence against the applicants, therefore they do not deserve to be enlarged on bail.
9. ' Not only applicants but 10 other co-accused are nominated in the F.I.R. With specific role of causing rifle and gunshot injuries to deceased Karam and Riaz alias Qaisar. It is pertinent to note that co-accused Hussano, Anwar, Muhammad, Bakhtoo, Gono, Akmal, Sahibdino, Muhammad Sharif, Rasheed and Papu are found innocent and their names have been kept in column No,2 of the challan by investigating officers M/s. A.S.-I. Fida Hussain Awan and S.I./S.H.O. Ayaz Danwar of P.S. Daharki only on the basis of confessional statements of applicants Ajmal and Mitho which in any case is not the requirement of the law. In this case P. Ws eye-witnesses Qalandar Bux, Aziz, Allandito have fully supported the version of complainant narrated ih the F.I.R. Specifying the applicants as well as the co-accused let off later on with specific role of firing from respective weapons upon deceased Karam and Riaz. In order to ascertain this position A.S.-I. Fida Hussain Awan and SHO Ayaz Danwar of P.S. Daharki were called in Court who in presence of Mr. Abdul Fateh Malik counsel for applicants Mr. Abdul Ghani Shaikh learned Addl. A.-G. Openly admitted that they have let off co- accused Hussano, Anwar, Muhammad, Bakhtoo, Gono, Akmal, Sahibdino, Muhammad Sharif, Rasheed and Papu and released them under section 497 Cr.P.C. Finding them innocent only on the confessional statements of applicants Ajmal and Mitho. A.S.-I. Fida Hussain Awan stated that he had simply recorded F.I.R., Mashirnama of the dead bodies, inquest report and final opinion in the matter was given by S.H.O. Ayaz Danwar. Not only this but investigating officer has further spoiled the case of the prosecution by making recoveries of rifle and gun on 3-9-1995 at 2-00 p.m.
10. (alleged weapons of the offence) after confessional statement of the applicant was recorded on the same date at 10-00 a.m by the Mukhtiarkar and F.C.M.
11. ' This is a serious case in which two persons have lost lives and the complainant and the abovementioned witnesses have specifically attributed the role of killing the deceased to them and they also have admitted to have committed the offence to avenge old enmity and have killed the deceased Karam and Riaz alias Qaisar. The case-law referred by applicants' counsel is not applicable with the facts of the present case and is entirely on different facts and circumstances.
12. ' The case of State v. Naseer 1993 SCM R 1822 is on the final decision of the case in which the confession was retracted and was made basis for conviction. In case of Amjad Ali and others v. The State 1982 SCM R 955 the bail is granted to the accused only on the ground that they had caused one injury on the leg which was not fatal. In the case of Haider Ali Shah v. The State 1994 PCr.LJ 2139 bail was granted mainly on the ground that judicial confession retracted was recorded 15 days after the arrest accused and recovery of pistol was not from exclusive possession of accused. In case of Muhammad Javed and another v. The State 1995 SCM R 1178 the bail was granted by the Hon'ble Supreme Court only on the ground that complainant his subsequent statement recorded under section 164, Cr.P.C. Had- given materially different version from the facts given in F.I.R. The case of Shamoon Jatoi v. The State 1996 PCr.LJ 783 is absolutely of no help as the bail in this case was granted on the ground of statutory delay in the disposal of case.
13. For the purpose of grant of bail a tentative assessment of evidence on record is to be made and deeper appreciation is to be avoided. Determining the validity, legality and correctness of confession of applicants at this stage will be a deeper appreciation of evidence which is not permissible under the law. The upshot of the above discussion without prejudice to the merits or demerits of the prosecution case is that there is prima facie case against applicants connecting them with the offence and there are reasonable grounds to believe that they have committed offence punishable with death or imprisonment of life or with 10 years and are therefore not entitled to the concession of bail. Their application is dismissed. In my view the Investigating Officers have not undertaken the investigation fairly for the reason best known to them. Copy of this order be forwarded to the D.I.-G. Sukkur Range and I.-G. Sindh at Karachi for directing further investigation and appropriate action which ever they deem necessary.