This order will dispose of an application moved by Jan Muhammad and 6 others for their post arrest bail in case. F.I.R. No.171/95 registered at P.S. Uch Sharif on 18-6-1995 at 9-00 p.m under section 302, P.P.C. On the statement of one Riaz Hussain, a Baloch, resident of village Chanab Rasoolpur.
2. According to his version in the F.I.R., he purchased a diesel tank for a sum of Rs.25,000 from one Abdul Malik son of Allah Ditta of his village and started the business of selling diesel in front of the house of Abdul Malik. He used to sleep near the tank at night. On the preceding night, his child was ill. He, therefore, went to his house and sent his brother Fayyaz Hussain to keep guard over the tank.
Fayyaz Hussain claimed over the roof of the shop and slept there. At about Namaz Vaila (in the morning) the complainant, as per his claim in the F.I.R., reached there and gave a call to his brother Fayyaz. There was, however, no response. He, therefore, went to the roof by staircase from the house of Abdul Malik and saw three injuries on the neck of his brother Fayyaz Hussain who was lying dead entrenched in blood. He raised alarm which attracted Ghulam Khan son of Mahmood Bakhsh and Massu Khan son of Khuda Bakhsh alongwith other residents of the village. The complainant narrated the occurrence to them. At the time of lodging his First Information Report, the complainant had no knowledge as to who had murdered his brother.
3. The investigation in this case was initially carried out by Saeed Ahmad L/S.H.O., Police Station Uch Sharif up to 20-7-1995. A perusal of the various Zimnis recorded by him shows that he formed an opinion that 3/4 persons had climbed over the roof where Fayyaz Hussain was sleeping who overpowered him and injuries were inflicted on his neck with some sharp-edged weapon, such as a dagger, in such a manner that he was neither allowed to raise alarm or to convulse. He also opined that there were many holes in the southern wall (of the shop) and the accused might have scaled over the wall by keeping their feet in these holes for reaching the floor. He, however, did not find any foot-prints on the roof or nearby. According to the statement of Mst. Lal Mai who was lying alongwith her husband in the courtyard of their house at a distance of 8 karams, her son Abdul Malik had sold the said tank to the complainant and the complainant used to sleep nearby in order to keep guard over it. She stated further that Fayyaz Ahmad might also have claimed over the roof by keeping his feet inside the hole of the wall. Abdul Malik, the seller of this tank, is also one of the accused-petitioners.
4. It was on 20-7-1995 that the investigation in this case was entrusted to Muhammad Aziz I./S.H.O., P.S. Channi Goth. He joined a large number of people in the investigation. On 28-8-1995, this Sub- Inspector recorded the statements of as many as six persons namely Muhammad Iqbal son of Rub Nawaz, Mukhtar Ahmad son of Manzoor, Allah Bachaya son of Muhammad Ramzan, Allah Nawaz son of Ghulam Nabi, Abdul Ghafoor son of Hazoor Bakhsh and Jahangir Hussain son of Jam Rasool Bakhsh under section 161, Cr.P.C. According to first four of them, they all got together at the place of Allah Nawaz in village Tarind Basharat on the night between 17/18-6-1995 with the intention of leaving for Karachi in search of labour and when they reached near the oil tank of Riaz Hussain which was lying on the metalled road leading to Adda Nalka, they saw the present accused namely Manzoor Ahmad son of Ghulam Haider, Ghulam Farid son of Ghulam Haider, Jan Muhammad son of Bahadur, Allah Wasaya son of Ghulam Farid , Abdul Malik son of Allah Ditta, Manzoor Ahmad son of Ghulam Farid and Allah Bachaya son of Ghulam Haider alongwith one Ashiq son of Ghulam Hussain who were getting down from the roof of a Kotha. They all asked them as to how they were present there and the latter replied that oil tanker had to reach there and they were waiting for the same. They then left towards Adda Nalka from where they boarded a bus for Karachi. It was in Karachi that all the four of them came to know that Fayyaz Hussain who was sleeping on the roof of that Kotha had been murdered. On return from Karachi, they narrated this incident to Riaz Hussain complainant. Abdul Ghafoor accompanied by Jahangir with whom he was working as a tractor driver, also reached the place where the tank belonging to Riaz Hussain was lying, on the road, for getting diesel for their tractor and they saw all the aforesaid eight persons coming down from the Kotha. On being asked they were told that the oil tanker had not yet reached and the oil was over. They also inquired from them as to why they were present there on which they got annoyed whereafter both Abdul Ghafoor and Jahangir left on their tractor towards Nalka Adda from where they got the diesel from the petrol pump. Then they left for their house. It was later that they came to know that Fayyaz Hussain had been murdered while sleeping over the roof of the tank.
5. It may be of some interest to point out that the complainant started suspecting these persons after the statements of aforesaid P. Ws. Were recorded. Both the parties then remained arranging gatherings consisting of their sympathisers, who expressed their varying opinions about the alleged occurrence. An agreement was reduced into writing whereby the parties agreed to get together at 10-00 a.m on 9-9-1995 where the accused had to establish their innocence. The accused party, however, did not turn up at the time and place whereafter fifteen persons from the side of the complainant opined that had the accused been innocent, they would have turned up to claim so and as such they were guilty. They insisted on the I. O. To arrest them and challan them.
6, The accused named above also individually gave some reason or the other before the I.O. For their being involved in this case falsely. It appears that Allah Wasaya son of Ghulam Rasool and Gohram son of Mahmood Bakhsh also remained joining the proceedings on behalf of the complainant party. Their names find mention in the Zimni recorded on 2-9-1995. It also appears that. Jan Muhammad alias Janni son of Bahadur Khan, accused, claimed that complainant Riaz Hussain was the Bhanja of Gohram Khan. One Manzoor Ahmad son of Allah Wasaya had been murdered in the year 1992 in which Gohraru Khan was also one of the accused. Jan Muhammad accused claimed that Riaz Hussain complainant had a grouse against him because he suspected that it was he who got his maternal uncle involved. Similarly Ghulam Farid son of Ghulam Haider accused claimed that a son of Sadiq Khan was murdered in the year 1992. He and certain other persons were challaned in connection with that murder but subsequently they were acquitted.
Ghulam Farid claimed that he and his son Manzoor Ahmad had been involved in this case by Riaz on the asking of Sadiq Khan. Almost similar claims were made by Allah Wasaya son of Ghulam Farid, Allah Bachaya son of Ghulam Haider, Manzoor Ahmad son of Ghulam Haider and Abdul Malik son of Allah Ditta.
7. It was on 12-11-1995 that the present seven accused were arrested by Muhammad Aziz L/S.H.O., Police Station Channi Goth after having come to the conclusion that he had collected sufficient evidence for apprehending them. It was on 20-11-1995 that the statements of Allah Wasaya son of Ahmad Bakhsh and Gohram Khan son of Mahmood Bakhsh were recorded by this S.H.O. Under section 161, Cr.P.C. In which they claimed that all the aforesaid accused alongwith Ashiq Hussain had come to them and had stated that they had murdered Fayyaz Hussain .In order to entangle the parties of Muhammad Ramzan Mahnwal and Ghulam Sadiq Khan in an unending litigation and fight but they did not succeed in it. According to both of them, this extra judicial confession was made by all these accused after they had requested for some time to prove their innocence about 2-1/2 months back. They stated before both of them that they had, committed a great mistake by murdering Fayyaz Hussain and the complainant party was trying their best to get them arrested.
They were all ready to pay compensation for this murder to the complainant. They also added that it was Abdul Malik who murdered Fayyaz Hussain with a dagger and all others had helped him in doing so and caught hold of the deceased.
8. The accused moved an application before the learned Sessions Judge for their bails. After taking into consideration the fact that during investigation Abdul Ghafoor etc P. Ws. Had stated that they had, seen the petitioners and their co-accused coming down from the roof of the place of occurrence on the said night and they also made extra judicial confession before Allah Wasaya and Gohram P.Ws. As to how they caused the murder and Abdul Malik petitioner inflicted injuries with, dagger while the others overpowered the victim, he came to the conclusion that the petitioners were reasonably connected with the commission of the offence falling within the prohibitory clause and were, therefore, not entitled to the concession of bail. He accordingly dismissed their bail petition on 10-1-1996.
9. The petitioners have come to this Court claiming bail on the grounds inter alia (i) that there was no eye-witness of the occurrence; (ii) that they were not nominated in the F.I.R.; (iii) that it was about 2 months after the occurrence that the complainant colluded with certain relatives and friends to make them P.Ws. And that the witnesses of extra judicial confession are the real maternal uncle of the complainant and Mamoonzad of his mother respectively, and (iv) that prima facie there are no reasonable grounds for believing that they are guilty of the offence with which they are being charged and that there are sufficient, grounds for further inquiry into their guilt.
10. I have heard the learned counsel for the parties at considerable length and have also given my anxious consideration to the facts and circumstances of the case after going through both the police file and judicial record and also the precedents cited at the bar. At the very outset, following the principle laid down in, Nazar Muhammad v. The State and another PLD 1978 SC 236, it may be observed that every case of criminal nature proceeds on its own facts and circumstances and rule of universal application cannot be deduced from the decision of any particular case. It has also been held in this judgment that the Courts on the basis of material placed before them such as F.I.R., statements recorded under section 161, Cr.P.C are fully justified, even at the bail stage to go into the question whether a case of constructive liability is made out. This, however, is subject to the rule of caution laid down in Manzoor Ahmad v. The State PLD 1972 SC 81 in the-following words:-- " ....It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds and the Court has to examine the data available in the case to find our whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence, "
11. There is also no denying the fact that joint extra judicial confession as in the present case is not admissible in evidence. It was so held in Sardar v. The State (1970 PCr.LJ 773) and Momoon and 9 others v. The State (1971 PCr.LJ 197), both of which were bail matters. There is obviously no direct evidence in this case and the material collected by the Investigating Agency consists of:-
(i) the evidence of Muhammad Iqbal son of Rub Nawaz, Mukhtar Ahmad son of Manzoor, Allah Bachaya son of Muhammad Ramzan, Allah Nawaz son of Ghulam Nabi, Abdul Ghafoor son of Hazoor Bakhsh and Jahangir Hussain son of Jam Rasool Bakhsh in the shape of their statements under section 161, Cr.P.C.; and
(ii) the joint extra judicial confession allegedly made by the accused before Allah Wasaya son of Ahmad Bakhsh and Gohram son of Mahmood Bakhsh.
12. The learned counsel for the petitioners have urged with vehemence that this evidence is speculative, that both the witnesses of extra judicial confession remained joining the investigation throughout from the side of the complainant but never uttered a word about any such confession having been made by the petitioners before their apprehension and their statements were recorded on 20-11-1995 i.e. Eight days after the apprehension of the accused. They have also contended that there were no good reasons for Muhammad Iqbal, Mukhtar Ahmad, Allah Bachaya and Allah Nawaz to remain silent for a period of more than two months after the occurrence even if it is believed that they had gone to Karachi because they had come to know of the murder at Karachi and were expected to disclose what they had seen immediately thereafter. Again, as per their assertion, there were no good reasons for Abdul Ghafoor and Jahangir Hussain P.Ws. To keep quiet and join the other four P.Ws. On 28-8-1995 to make such statements. The learned counsel for the complainant has, on the other hand, urged that the evidence so far collected by the prosecution is sufficient to connect the petitioners with the commission of the offence with which they are being charged.
13. Without entering into the merits of the case or deeper appreciation of evidence so far collected by the prosecution and making only a tentative assessment, I have formed an opinion that the petitioners have a good case for bail. The evidence so far recorded by the prosecution is mainly speculative and there are no reasonable grounds for believing that the accused had committed a non-bailable offence falling within the prohibitory clause but there are sufficient grounds for further inquiry into their guilt and as such their case falls under section 497(2), Cr.P.C. They are therefore, enlarged on bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 (one lac) each with two sureties in the like amount each to the satisfaction of the A.C./Duty Magistrate; Ahmadpur East.