1. Applicant Janib son of Buxial Chandio seeks bail in Crime No. l of 1996 Police Station Drigh under sections 302, 34, P.P.C. The case as unfolded in the F.I.R. Is that on 20-1-1996 complainant Abdul Qadir, his brother Ghulam Qadir and cousin Mashooque A.I left their houses towards village Qadir Bux Chandio. When they reached near the lands of Allah Bux in the evening at about 6-30 p.m.
2. They saw Imam Bux, Rasool Bux, Janib and Muhammad Hassan coming running towards them.
3. Rasool Bux was armed with rifle, Imam Bux was having shotgun and rest were having hatchets.
4. Imam Bux challenged Mashooque and asked him that his relative Barkat A.I is their Karo and why they have come to their village. They will not be spared and would be killed. Imam Bux fired direct shot at Mashooque A.I which hit him who fell down. Other two accused challenged the complainant not to come near. The complainant party was empty---handed, they did not go near to them and raised cries which attracted Allah Bux Chandio. Complainant lodged the F.I.R. During investigation applicant/accused was arrested by police. His bail application was rejected by the learned Sessions Judge vide his order, dated 4-4-1996.
2. I have heard Mr. Asif A.I Soomro learned counsel for the applicant/accused, Mr. Muhammad Afzal Soomro for the complainant and Messrs Abdul Fatah Mughal and Issardas counsel for Additional Advocate General. Mr. Asif A.I Soomro contends that specific role of firing on the deceased is attributed to co-accused Imam Bux and according to the prosecution case part assigned to this accused is that he was armed with hatchet. Police during investigation examined Bachal, Muhammad Piyaral, Mashooque and A.I Gohar and recorded their 161 and 164, Cr.P.C. Statements in which they implicated applicant/accused Janib also. Police also got recorded the judicial confession of present applicant/accused from the Court of Civil Judge and F.C.M., Qamber.
5. Complainant party being dissatisfied with the findings of the investigation moved the learned Sessions Judge with an application under section 193, Cr.P.C. For joining Imam Bux as an accused. It would be pertinent to refer clause 4 of the application filed on behalf of complainant in the Court of learned Sessions Judge:-- "That as per version given in the F.I.R. As well as in 161 and 164, Cr.P.C. Statements of the witnesses, respondent No.1 (Imam Bux) was present at the Wardat duly armed with gun and specific role of causing gunshot injuries to deceased Mashooque A.I has been attributed to him. "
6. After hearing the learned counsel for the complainant the Sessions Judge vide his order dated 29- 5-1996 ordered as follows: "I have perused the F.I.R. And found that the complainant has specifically attributed part against this accused that he has raised Lalkara and then he fired a shot which hit Mashooque A.I, hence he has taken part in the offence, even otherwise this accused has been let off under section 497, Cr.P.C. Which means he was let off on bail and he was not released under section 169, Cr.P.C. Under these circumstances the application moved under section 193, Cr.P.C. Is allowed. Issue N.B.Ws.
7. Against accused Imam Bux son of Mevo Chandio for his arrest to S.H.O. Police Station Drigh."
8. Mr. Asif A.I Soomro learned counsel contends that the case of prosecution prima facie appears to be of two versions and by now it is settled law that any doubt arising out of prosecution case is to be allowed in favour of the accused. Mr. Asif A.I Soomro refers (1) PLD 1994 SC 86, (2) 1984 PCr.LJ 2495 and (3) 1995 PCr.LJ 544.
(1) Muhammad Rahim and another v. Baita Gul and another PLD 1994 SC 86. The observation of the Honourable Supreme Court is as follows:-- "Tariq Nawaz who is a young boy of 16/17 years, first made a complaint against his brother-in-law and then in his statement under section 164, Cr.P.C. Resiled from it and accused the petitioners. "
(2) Shahbaz Gul v. The State 1984 PCr.LJ 2495. Learned Judge of this Court has held:-- "I have considered the arguments advanced by learned counsel for applicant as well as learned Assistant Advocate-General and find that in view of the totally different version given in the F.I.R.
9. And statements under section 164, Cr.P.C. Whereby different persons had been implicated and even the nature of weapon used as well as the motive set up have been changed, without expressing any opinion on the merits of the case. It is a case of further inquiry."
(3) Asghar Masih and another v. The State 1995 PCr.LJ 544 learned Judge observed that:-- "There is no legal or moral compulsion to keep an accused in jail merely on the allegation that he had been mentioned in the F.I.R. And had committed murder unless reasonable grounds appear to exist. It is well established principle of law that law should not be stretched in favour of the prosecution if any benefit of doubt arises, it must go to the accused."
10. Mr. Muhammad Afzal Soomro learned counsel contends that accused/applicant has given judicial confession before Civil Judge and F.C.M., Qamber which is corroborated by recovery of his licensed gun. Learned counsel has referred (i) Hubdar A.I Shah v. The State 1994 PCr.LJ 2139, decided of this Bench: "The alleged judicial confession is verbatim copy of the statement of accused recorded by police on 4-9-1994 which is available in the police papers. Facts in advance knowledge of the police stated in confession and only corroborated the confession when confessor had not done so at the instance of prosecution."
(2) The State v. Zubair and 4 others PLD 1986 SC 173. The observation of Honourable Supreme Court is as follows:-- "The second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed cannot be considered as a fresh ground and made the basis of any subsequent bail application: The mere fact that the Judge who had rejected the first bail application with the observation that as far as the remaining petitioners are concerned no case had been made out for their release on bail, does not mean that the application has not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the learned counsel before him that the same had not found favour with him. The notion that each contention raised before the Court in a bail application must not be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived.
11. The fact of having recorded judicial confession of the accused was considered by the learned Sessions Judge in his order, dated 4-4-1996. The application is not moved here second time."
12. With all humbleness at my command I am of the opinion that observation of the Honourable Supreme Court is not applicable to the facts of the present case.
13. I have heard Messrs Abdul Fatah Mughal and Issardas learned counsel for Additional Advocate- General who have conceded to the grant of application.
14. Admittedly the accused Imam Bux has been joined by the Sessions Judge, Larkana as co-accused in this case. Police during investigation has released him under section 497, Cr.P.C. The confession has been perused by me without discussing further merits or demerits of the case, the confession appears to be verbatim statement of accused by the police. In F.I.R. Active role of firing is attributed to accused Imam Bux, whereas subsequently police during investigation arrested accused/applicant and on the very day got recorded his confession.
15. I may point out that in his judicial confession none is mentioned as witness of occurrence, whereas he has mentioned Rasool Bux, Muhammad Hassan who are shown as co-accused in the case by the police. According to challan Muhammad Hassan is shown as absconder whereas Rasool Bux is shown in custody, who has been released on bail by the learned Sessions Judge, Larkana. The contention of Mr. Muhammad Afzal that police has dishonestly investigated the case and recorded the statements of the persons at the whim and wish of co-accused Rasool Bux. Be that as it may, any fault in police investigation is not to be taken in favour of the prosecution at all.
16. Co-accused Imam Bux is released on bail by the police. Accused Rasool Bux has been granted bail by the learned trial Court. The version given in the F.I.R. In which accused/applicant is alleged to be armed with hatchet is subsequently changed by the witnesses examined by the police namely Bachal, Muhammad Piyaral, Mashooque A.I and A.I Gohar in their 164, Cr.P.C statement. It is strange enough to note that alleged judicial confession of accused Janib is silent about the presence of these witnesses. The active role of firing at deceased is assigned in these statements to accused/applicant Janib. Thereafter, police released accused Imam Bux on bail under section 497, Cr.P.C. According to prosecution case solitary single empty is alleged to have been recovered by the police from the Wardat and active role of firing in F.I.R. Is attributed to Imam Bux co-accused who has subsequently been joined by the learned Sessions Judge as accused vide his order dated 29-5-1996 referred hereinabove. The contention of learned counsel for complainant that alleged recovery of licensed gun is corroboration to the judicial confession of accused recorded by Magistrate is hardly to be considered, because according to case of prosecution active firing is attributed to accused Imam Bux and subsequently version is changed and active role is assigned to present accused Janib. It would be pertinent to refer unreported decision of this Court in Ghanwar v. The State Criminal Bail Application No. 169 of 1991, Ranjhan v. The State Criminal Bail Application No.388 of 1992, and Sono v. The state Criminal Bail Application No.662 of 1986 in which it has been held that judicial confession without independent corroboration is hardly to be believed and the cases of the applicants were held to be of further inquiry. Here in this case also, the judicial confession is not supported by independent corroboration. The case-law referred by Mr. Asif A.I Soomro has relevancy to the facts of the present case, whereas case-law cited by Mr. Muhammad Afzal Soomro is different and distinguishable and has no relevancy to the facts of the case.
17. Prima facie there are two versions of the prosecution case and by now it is settled law that benefit of doubt arising out of prosecution case is to be exercised in favour of the accused.
18. For the foregoing reasons, case of the applicant/accused is that of further inquiry. I allow this application and order that accused/applicant be released on bail on furnishing solvent surety in the sum of Rs.2,00,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of trial Court.