' Applicants Ghulam Nabi and Irshad Ali alongwith co-accused Ghulam Mustafa (on bail) and Qurban Ali as well as Dilawar are facing trial on the charge of commission of murder of deceased Oshaque Ali son of the complainant before the Sessions Judge Larkana.
2. Unfortunate incident leading to the death of the deceased took place on or about 8-5-1997 at about 8.00 p.m. Near a brick-kiln on the road leading from Naudero to village phulpota. As per F.I.R.
Deceased aged about 18/19 years was employed at the cycle shop of Saifullah Korejo at Naudero.
On the fateful day complainant Ranjhan alongwith his cousin Imdad alias Serai and his nephew Fayyaz had been to Naudero. After being relieved of the task they went to the shop of Saifullah.
Deceased Oshaque Ali accompanied them to the village and was about 10 paces ahead of the complainant and witnesses when on the way home near a brick-kiln five persons duly armed emerged. Of them accused Ghulam Mustafa was without any weapon accused Irshad, Ghulam Nabi and Dilawar armed with guns while accused Qurban Ali was carrying a pistol. Accused Ghulam Mustafa cautioned the deceased by hurling abuses to him and alleging that his brother Inayat Ali was Karo, therefore, he would not be spared. At his instigation complainant party raised an alarm but the accused persons threatened to kill them, therefore, they kept quiet. It is alleged that all the four assailants fired from their respective weapons at the deceased who fell down.
Assailants then left for their village while the deceased died instantaneously on account of fire-arm injuries. Leaving the witnesses to watch the dead body Ranjhan rushed to Police Station Naudero and lodged his report against the accused assigning specific part to each one of them.
3. After the registration of crime S.H.O. Visited the place of incident, noted injuries on the dead body, recovered four empty cartridges of twelve bore being at a distance of 10/15 paces from the dead body. According to the complainant assailants fired at the deceased from some distance where the empties were recovered. It is said that the applicants alongwith co-accused persons were arrested on 14-5-1997 when accused Qurban Ali and Dilawar led to the recovery of a shot-gun and a pistol used in the commission of the crime. During the course of investigation P.Ws. Abdul Ghani Soomro, Mashooq Ali Bhutto, Muhammad Sadiq and Asghar Ali recorded their statements before the Investigating Officer on 20-5-1997 to say that on the date of incident applicants Ghulam Nabi and Irshad Ali alongwith co-accused Ghulam Mustafa had attended the invitation of khairat arranged by Mashooq Ali at village Ghulam Bhutto about twenty five Kms away from the place of incident from 6-00 p.m. To 8-00 a.m. The next day. These witnesses were produced before Judicial Magistrate, Larkana, where they made identical statements on oath under section 164, Cr.P.C. To establish the ground of alibi.
' Dr. Ahsanullah Abro, Medico Legal Officer, Chandka Medical College Hospital, Larkana performed autopsy on the dead body. On external examination he noted nine lacerated punctured wounds of different dimensions on different parts of the dead body. According to Medical Expert injuries Nos. 1 and 2 on the mid of chest anteriorly and on the right and left hypochondrium region of abdomen were sufficient to cause the death in ordinary course of nature. All injuries appeared to be caused by a fire-arm and were antemortem in nature. As a result of investigation Investigating Officer expressed the view that applicant Ghulam Nabi, Irshad Ali and accused Ghulam Mustafa were falsely involved in the commission of the crime; that they be released on bail under section 497, Cr.P.C. And that their names may be mentioned in column No,2 of the charge-sheet. On verification of investigation S.D.P.O. Naudero also endorsed this opinion but S.S.P. Larkana directed that all the accused may be sent-up before the Court of law to face their trial.
5. Applicants' alongwith Ghulam Mustafa applied for their release on bail before learned Sessions Judge, Larkana. Their application was heard by an Additional Sessions Judge who granted bail to accused Ghulam Mustafa but declined bail to the applicants hence this application.
' Learned counsel appearing in support of the prayer for bail contended that the applicants were falsely implicated due to enmity; that visibility at 8-00 p.m. On the day of incident being too poor identity of the applicants may be mistaken; that there is a marked contradiction between ocular and medical evidence and lastly that the Investigating Officer had found the applicants to be falsely implicated and innocent. On the other hand learned counsel for the complainant duly supported by Additional Advocate-General submitted that while dealing with prayer for bail this Court would not go into deeper analysis of the evidence; that the F.I.R., was promptly lodged and applicants nominated with specific role in the commission of crime and lastly that the plea of alibi was highly belated giving rise to the opinion of the Investigating Officer which though relevant is not binding on a Court of law.
7. In support of his contentions learned counsel for applicants referred the following cases:---
(i) Amir Ali v. State 1984 SCM R 521.
(ii) Roshan Ali v. Sardara 1984 SCM R 1559.
(iii) Muhammad Abbass v. State 1987 SCM R 483.
(iv) Muhammad Mumtaz v. State 1985 SCM R 1452.
' On the other hand learned counsel for the complainant relied upon:---
(i) Shah Zaman v. State PLD 1994 SC 65.
(ii) Liaquat Ali v. State PLD 1994 SC 172.
(iii) Abdul Hayee v. State 1996 SCM R 555.
(iv) Muhammad Mansha v. State PLD 1996 SC 229.
8. In Amir Ali's case A.S.P. Who had inspected the scene found that three petitioners were not present at the scene of the occurrence. Bail plea was refused by the High Court but the Supreme Court exercised discretion in their favour with the observation that the view expressed by A.S.P. Was based on sufficient material and that in such case the benefit of doubt arising from the report of A.S.P. Must be resolved in favour of the petitioners even at the bail stage. In Roshan's case three accused out of five persons were released on bail by Lahore High Court on the ground that Investigating Officer on the basis of statements of certain employees of Forest Department had recommended that they he shown in column No,2 of the challan although his recommendation was not supported by prosecution agency. In such circumstances Supreme Court declined to interfere with the exercise of discretion by the High Court at the instance of the complainant. In Muhammad Abbass v. The State prosecution case rested entirely upon ocular testimony but during the course of investigation accused produced a large number of witnesses including two eye- witnesses. Upon consideration of such evidence two senior police officers came to the conclusion that three accused persons out of four were innocent but the High Court declined bail. In appeal Honourable Supreme Court upon assessment of the material on record exercised discretion in favour of the accused with the observation that the learned Single Judge in High Court had not given due weight to the finding of two Investigating Officers despite the fact that it strengthened the presumption of innocence which is ordinarily drawn in favour of an accused at the pre-trial stage. In the last mentioned case referred by the applicants while bail to six accused persons was refused by the High Court, Supreme Court exercised the discretion of granting bail for the reasons that they were found innocent by police and placed in column No,2 of the challan and the alleged statements of accused persons made before the police were erroneously considered by the Single Judge who had substituted his own opinion over that of the police.
9. In Shah Zaman's case which arose from an order granting bail Supreme Court declined to interfere with the exercise of discretion by Sindh High Court and observed that while deciding the bail application before recording of evidence in the trial, only tentative assessment was to be made by the Court and it was not possible to go into the details of evidence one way or the other for that might prejudice the case of one party or the other. In Liaqat Ali's case two Investigating Officers had found the accused innocent seemingly on oral testimony of certain defence witnesses. Specific role assigned to accused in the F.I.R. Was supported by the testimony of two injured eye-witnesses. High Court did not rely upon the opinion of Investigating Officers and refused bail. In appeal Supreme Court declined leave to appeal with the observations that it is well-settled that the opinion of the Investigating Officer is not binding upon the Court; that such opinion holding an accused innocent cannot be made the only basis for granting bail although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the Investigating Officer. In Abdul Hayee's case to the accused was cancelled by High Court but Supreme Court refused to interfere with the exercise of discretion by the High Court with the observation that evidence of the parties could not be assessed in depth at bail stage, the purpose being to avoid expression of opinion one way or the other on merits of the case. In the last mentioned case Supreme Court observed that non- recovery from the accused by itself could not detract from the possession otherwise making out a prima facie case against him. Learned counsel further relied upon the observation that opinion of the Investigating Officer in the earlier investigation regarding alibi of the accused being based on the ocular evidence of witnesses and not corroborated by any other reliable evidence produced by the accused could not be taken into consideration for the purpose of granting bail to him.
10. On an overall assessm ent of the facts and circumstances leading to this case and on resume of the case-law cited by the parties following principles of law can be safely deduced:---
(i) While deciding a bail application Court cannot enter into a deeper examination of the material available on record and the assessment for the decision of a bail application can only be approximate, tentative and inconclusive.
(ii) Opinion of the Investigating Officer is relevant for the purpose of deciding a bail application but under no circumstances is it binding on the Court.
(iii) Benefit of doubt arising out of prosecution case as well as the defence plea can be lawfully extended in favour of the accused even at bail stage.
(iv) While injury caused to an accused by his indefinite detention during trial may be irreparable in the event of his acquittal an accused erroneously released on bail would always be liable to punishment in the event of being found guilty.
(v) That the bail cannot be withheld merely because charge against the accused is heinous as it may amount to punishment and tantamount to negation of the well-established principle of law that an accused is presumed to be innocent unless found guilty.
11.. While the anxiety of the complainant that the accused may not be released on bail pending trial as it may add to his agonies is natural it is equally painful for an accused to be detained in custody deprived of his liberty except in due course of law. In fact seriousness of the allegations in a prosecution case by itself should not deter a Court from examining the merits of a case though tentatively for determining whether there are reasonable grounds for believing that the accused has not committed an offence and whether his case requires a further enquiry into his guilt. Of late it has been rampant tendency of people in general and particularly in country side of this province to exaggerate the number of assailants and to involve as many persons of the family as possible with a view to deter them from pursuing the defence of the real culprits. It is for this reason that the Courts have been generally extending the concession of bail to a person who though alleged to be present at the time of incident duly armed with a deadly weapon but does not use it and merely instigates the commission of a crime. In the present case co-accused Ghulam Mustafa has been released on bail by the Trial Court for this reason alone. No doubt fire-arm injuries have been attributed to the applicants in the commission of the crime the distance from which such injuries were allegedly caused is shown to be 10-15 paces whereas the Medico-Legal Officer had noticed charring on mid of chest anteriorly being a wound of injury and charring on the left hypochondrium region of abdomen another wound of entry. He had also noticed charring on the palmer surface of right hand as well as blackening on the dorsum surface of left hand of the deceased which would prima facie indicate that these injuries were caused from a close range as observed by Modi in his illustrated treatise on Medical Jurisprudence. Learned author in his authoritative work has expressed that blackening is found if a fire arm like shot gun is discharged from a distance not more than three feet and a revolver or pistol discharged within about two feet. According to the author scorching in the case of the latter fire-arm is observed within a few inches, while some evidence of scorching in the case of shot guns may be found even at one to three feet. By pointing out this circumstance, I think, I am not commenting on merits of the evidence in a deeper perspective and the idea is only to show that there may be reasonable grounds for believing that the view expressed by the Investigating Officer may not be altogether incorrect and irrelevant.
12. In view of the circumstance that no recovery was effected from the possession of the present accused; that there is a rampant tendency to involve innocent persons in addition to real culprits; that apparently but not conclusively there is a marked discrepancy between the ocular and medico-legal evidence; that the Investigating Officer found the applicants innocent and recommended their mention in column No,2 of the charge-sheet; circumstance that no specific and strong motive has been assigned against the applicants and without being impressed by the plea regarding alibi of accused, I think there are reasonable grounds for believing that the applicants may not be guilty of the charge and their case requires a further enquiry into their guilt. I am, therefore, inclined to direct the release of applicants on bail in the sum of Rs,1,00,000 each and P.R. Bond to the satisfaction of the Trial Court.