1. ' This bail application has been filed on behalf of the applicant/accused who is facing charge under sections 302, 337-H(ii) Q&D Ordinance read with sections 148, 149, 34 and 13-D, Arms Ordinance under F.I.R. 152 of 1996 of Police Station Moro, District Naushehro Feroze.
2. ' According to the F.I.R. Lodged on 11-12-1996 at 22-30 hours, the complainant Muhammad Lukman stated that his sister Mst. Farzana aged about 30/32 years was married to Haq Nawaz son of Allah Bux, resident of Laloo Kot about 8 months back. Haq Nawaz had promised to give hand of his niece (daughter of the brother) in exchange. About 4 months back, he along with his brotherS, Muhammad Usman and Hamza Khan went to the village of Haq Nawaz and demanded the hand of the girl but they avoided. Then they took their sister Farzana with them for the purpose of meeting. Thereafter, people from Haq Nawaz side started coming to take Mst. Farzana back. They were told that they will not let Farzana go with them unless niece of Haq Nawaz is married to his brother. Thereafter, father of Haq Nawaz came to take back his daughter-in-law and on refusal, he said that he will see how long Farzana is kept with them. On 11-12-1996 after taking dinner, he, his brothers Hamza and Muhammad Usman went to sleep in their rooms after closing the gate of Hawailee and his brother Sattar Dino and Ali Muhammad were sleeping in Otaq outside the Hawailee, at about 22-30 hours they heard screams of their sister Farzana who was sleeping in the Verandah. He tried to open the chain of the door but he found the door closed. After about 10 minutes, he saw after opening the door that his brothers Muhammad Usman and Hamza had also come out from their rooms-. They saw in the light that Haq Nawaz son of Allah Bux Mubejo, who was holding a rifle in his hand was taking Farzana towards the gate of Hawailee by dragging her.
3. On our challenge, 4 other persons came inside, 2 out of them were carrying guns and 2 were armed with klashnikovs, they challenged them that do not come near and because of fear they did not come near, in the meantime they went out of the Hawailee and the complainant and his brothers followed them up to the gate of the Hawailee. His sister was crying by saying that she will not go. On seeing them, Haq Nawaz made a straight fire on his sister who fell down on the ground.
4. After tire of Haq Nawaz, his 4 companions started firing and ran away towards Otaq leaving Farzana. His brothers Usman and Hamza also fired with their licensed guns in counter. The accused ran away while firing. When they reached at Otaq, his brothers Sattar Dino and Ali Muhammad told that 4 accused persons were standing besides them and they tried to stand up they made them to sit by beating with butts of guns to whom they had seen clearly in the light and can identify them on seeing. Then they all went to their sister and found fire injuries on chest, left and right shoulders and she had also bleeded from the nose and mouth. They brought a cot and body of Farzana was laid on the cot. He (the complainant) after leaving his brothers Usman, Hamza, Sattar and Ali Muhammad with the dead body of Farzana, went to the village of his Nek Mard Moula Bux Mebejo on motor-cycle and after taking his Nek Mard with him he went to report that accused Haq Nawaz son of Allah Bux who was holding rifle in his hand along with other 8 armed persons came to his house and murdered his sister Farzana by firing.
5. ' I have heard the learned counsel. The applicant's counsel argued that Mst. Farzana had married Haq Nawaz against the wishes of complainant and other brothers. He relied upon the copy of affidavit of free-will filed by Mst. Farzana, dated 12-6-1996 before the Magistrate and the copy of her Nikahnama, dated 1st July, 1996. He further argued that there was enmity as such the applicant has been involved in this false case. His further argument was that there was no recovery of the incriminating article from the accused and that no empties were recovered. The State Counsel conceded and submitted that it was a case of further inquiry.
6. I have gone through the record of the case. According to the F.I.R., the accused made one fire, whereas the deceased, according to the F.I.R. Had two other fire-arm wounds each on the right and left shoulder. It is not borne out as to who fired the other two shots. Further, according to the F.I.R., the accused fired with his rifle and his companions had also started firing and the complainant's brothers also fired, but no other person received any injury and no empties of rifle and klashnikovs were recovered. Further, the allegations of the complainant in the F.I.R. Is that his two brothers namely, witness Sattar Dino and Ali Muhammad were given beating by the other accused with the butt of the gun, but no such injuries were found on their body and they were not examined by the doctor. Further, looking at the memo of arrest, I noticed that the date of the memo. Of arrest written on 13-12-1996 has been changed to 12-12-1996 by cutting and overwriting. The other discrepancy occurring in the medical report is that time of arrival of the dead body has been mentioned as 1-30 a.m. On 12-12-1996 but the time of examination has been mentioned as 12-30 a.m. To 13-20 a.m.
7. ' From the above, this fact cannot be ruled out that the accused who had married the sister of the complainant party against their wishes might have been involved in the case due to enmity, ' In the case reported in Hafiz Moulvi Muhammad Fazal Hague and another v. The State 1994 PCr.LJ 2392 the accused were enlarged on bail as no incriminating recoveries had been made from the accused and investigation had been concluded and that they were no longer required by the police. It was further ousted in this case that the crime empties were not picked up from the spot for scrutiny by the Ballistic Expert, reasonable grounds, thus existed to believe that involvement of accused in the case was not free from doubt.
8. ' In the case reported in Muhammad Saleem v. The State 1984 PCr.LJ 3086 bail was granted to the accused who was facing trial under section 302/34, P.P.C. On the ground amongst others that the accused remained in police custody for several days but weapon of offence had not been recovered.
9. ' The accused was granted bail in another case reported in Fateh Khan v. The State 1993 M LD 2357 wherein it has been held that reasonable doubt was raised regarding the correctness of the prosecution version in view of the specific plea of the accused supported by sufficient material available on record.
10. In the present case, the version of the accused supported by the copy of the free will affidavit of the deceased Farzana and Nikahnama goes to show that Mst. Farzana got married to the accused against the wishes of her brothers. The plea on behalf of the accused that the Nek Mard and others had brought back Mst. Farzana assuring the accused that formal Rukhsati will be held, but they handed over Mst. Farzana to her brothers who did not allow her to go to the accused, cannot be brushed aside at this stage.
11. ' In view of the contradictions/discrepancies pointed earlier and in view of the case-law discussed above, I am of the view that involvement of the accused in this case was not free from doubt and the guilt of the accused requires further inquiry. The bail application thus allowed and the accused is granted bail in this case on his furnishing one solvent surety in the sum of Rs,2,00,000 (rupees two lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.