1. ' Accused/applicant seeks bail in crime No,19 of 1998 registered with Police Station New Faujdari Shikarpur for an offence under section 302/34, P.P.C.
2. ' Brief facts of the case are that on 22-1-1998 Abdul Qadoos Soomro lodged the report with the police stating therein that he is Professor in C & S Government Degree College Shikarpur. His younger brother deceased Abdul Khalik who was District Officer in Sindh Small Industry used to live in Nabi Shah Mohallah Shikarpur and he himself used to effect recovery of the Corporation.
3. Marriage of his said brother had taken place with the daughter of Kalander Bux Malik from whom he has two sons and one daughter. Alongwith his brother Abdul Khalik, his brother-in-law Moula Bux and cousin of Moula Bux, namely, Mir Hazar Khan also used to reside there. During night time at 3-30 a.m. Moula Bux came to him, knocked the door and narrated the facts that he, Mir Hazar Khan and his brother-in-law Abdul Khalik deceased were sleeping in the house. At about 0200 hours the door was knocked and his brother-in-law woke up and opened the door. Electric bulbs were lightening in the house. On the knock of the door Moula Bux and Mir Haiar also woke up and saw four persons armed with T.T. Pistols entered the house. The culprits inquired from Abdul Khalik as to where was the money of recovery and hand over the same to them. He and Mir Hizar Khan remained silent due to fear. Two culprits entered into the room and took Rs,30,500 from Abdul Khalik upon which Abdul Khalik asked them that he had identified them and he will not let them go.
4. The culprits who were inside the house asked their two other companions who were standing in the courtyard to shoot at him because Abdul Khalik had identified them and the culprits who were standing in the courtyard directly fired from their T.T. Pistols at Abdul Khalik. Abdul Khalik died due to injuries and culprits made good their escape.
5. ' After hearing the above facts from Moula Bux Malik, complainant Abdul Qudoos went to the house of his brother and saw him lying dead on the cot in the courtyard having fire-arm injuries. He left Moula Bux and Mir Hazar Khan as guard over the dead body and lodged the report to the effect that four unknown culprits armed with T.T. Pistols trespassed into the house of Abdul Khalik Soomro his brother and committed the robbery and on identification of Abdul Khalik, they murdered him by firing T.T. Pistol shots and also took away Rs,30,500. The culprits were clearly seen by Moula Bux and Mir Hazar on electric bulb because their faces were open and they will be able to identify them.
6. ' On 23-1-1998 complainant appeared before the S.H.O. And got recorded his further statement to the effect that he came to know from Abdul Rauf Soomro and Taj Muhammad P.Ws., that deceased Abdul Khalik Soomro had prevented Mir Hazar the cousin of his wife from visiting his house who insisted and misbehaved with him. On the same day Abdul Rauf and Taj Muhammad were also examined. Thereafter, their 164, Cr.P.C. Statements were also recorded.
7. ' On 7-2-1998 police examined Khair Muhammad Soomro and on 19-21998 his statement under section 164, Cr.P.C. Was recorded. He stated that he used to awaken the people in the night of Ramzan Shareef for Sehri purpose. On 22-1-1998 while he was passing from the house of deceased Abdul Khalik, he heard the pistol shot and found accused Mir Hazar, Islam, Imdad and Sikandar coming out from the house of deceased Abdul Khalik. Mir Hazar was armed with a pistol. Then he went away to his house. Later he came to know that Abdul Khalik has been killed.
8. ' Abdul Rauf Soomro son of Illahi Bux Stated before the Police that he had gone to Karachi before the incident and on 22-1-1998 he received telephone from his family that his brother Abdul Khalik has been injured and later expired. He came back from Karachi to Shikarpur and went to the house of deceased where his brother Abdul Qudoos informed him that he has lodged the F.I.R. At the instance of Moula Bux Malik against some unknown culprits whereupon Abdul Rauf informed Abdul Qadoos that he was informed by Abdul Khalik deceased that Mir Hazar used to visit his house in his absence against his wishes and that deceased had also asked his wife not to meet Mir Hazar but she also misbehaved with the deceased.
9. ' Police after recording further statement of complainant and examining Abdul Rauf, Taj Muhammad, Khair Muhammad and Abdul Hakim, got recorded their 164, Cr.P.C. Statements before City Magistrate Shikarpur. Police arrested Mir Hazar on 8-2-1998 and police also recovered T.T.
10. Pistol from his possession.
11. ' After finalisation of the investigation charge-sheet before Court was filed. Bail application on behalf of applicant/accused was moved before IVth Additional Sessions Judge, Shikarpur which was rejected vide order dated 23-4-1998. Hence the present application.
12. ' I have heard Mr. Abdul Fatah Malik learned counsel for applicant/accused who contended that further, statement of complainant Abdul Qudoos recorded by police is of no evidentiary value; that the name of applicant/accused has been disclosed by P.W. Khair Muhammad who is a chance witness and had no reason to be there. According to the learned counsel Khair Muhammad too is not an eye-witness and that his statement was recorded on 8-2-1998 whereas incident is alleged to have taken place on 22-1-1998; that lie did not disclose the facts to complainant or police for the intervening period. He lastly urged that in view of the above facts and circumstances case of applicant requires further inquiry and the applicant/accused is entitled to be released on bail.
13. ' Mr. Abdul Fateh Malik relied upon the wealth of case-law which is as follows:--
(i) Manzoor and 4 others v. State (PLD 1972 SC 81),
(ii) Amir v. The State (PLD 1972 SC 277),
(iii) Saifullah v. The State (1985 SCM R 410),
(iv) Fakar Sher alias Sheru v. State (1995 SCM R 1350)
(v) Muhammad Hussain v. Afzal Ahmed and another (1995 SCM R 932)
(vi) Deedar Ali v. The State (1996 PCr.LJ 771)
(vii) Mazullah and others v. Abdul Rehman and others (1997 SCM R 1836).
14. ' Mr. Zawar Hussain Jafri learned Addl. A.-G. Vehemently opposed the grant of bail application and submitted that in the peculiar circumstances of the case, no doubt complainant Abdul Qudoos lodged the F.I.R. According to the facts narated to him by Moula Bux, the brother-in-law of deceased who alongwith Mir Hazar was present in the house. Even it is case of prosecution that both of them used to reside with deceased in his house. After lodging of the F.I.R. Complainant was informed by Abdul Rauf and Taj Muhammad that Abdul Khalik deceased used to restrain Mir Hazar from visiting house as according m their evidence in absence of Abdul Khalik Soomro, Mir Hazar used to visit his house and he suspected that he is having illicit lien with his wife. He also reprimanded his wife but of no consequence. When these facts came to the notice of complainant, he gave the same to the police and thereafter, police started investigation.
15. ' During investigation Khair Muhammad P.W. Disclosed the facts to the police that on the night as usual he was awakening the persons at Sehri time so that Muslims may observe fasting and when he crossed in front of house of Abdul Khalik he heard two fire-arm reports and found Mir Hazar, Islam, Imdad and Sikandar coming out from the house of deceased Abdul Khalik. Mir Hazar was armed with pistol. He further disclosed that he used to see Mir Hazar and Sikandar daily coming out from the house of deceased. Therefore, as usual he went away by awakening the Muslims. When he came back to his house on the night of Eid, he came to know that Abdul Khalik has been murdered.
16. ' In their statements under section 164, Cr.P.C. Recorded by City Magistrate Shikarpur P.Ws., Abdul Hakim and Abdul Rauf have stated that Mir Hazar admitted before them that he had committed murder of Abdul Khalik by firing at him with T.T. Pistol. Police during investigation also recovered T.T.
17. Pistol from the possession of accused/applicant. In view of the evidence so collected there is sufficient evidence to show that accused/applicant is guilty of the offence for which he has been charge sheeted.
18. ' Learned A.A.-G. Has further contended that decisions referred to by Mr. Fattah Malik are not applicable to the facts of the present case. In the reported cases the matters were taken to the High Court and the Hon'ble Supreme Court after the evidence was recorded by the trial Court and the accused were convicted for the offence whereas in this case evidence is yet to be recorded by the trial Court and possibility of tampering of the evidence at the hands of accused/applicant cannot be excluded if he is released on bail.
19. ' Learned A.A.-G. Cited the case of Mst. Rashid Begum v. Abdul Rashid and others (1990 SCM R 579).
20. ' I have gone through the material placed with the case and have also considered the arguments of learned counsel for the parties. No doubt the name of accused/applicant does not transpire in the F.I.R. But it is the case of the prosecution itself that Moula Bux the brother-in-law of deceased Abdul Khalik and present applicant/accused the cousin of the wife of deceased used to reside in his house. Therefore, at the time of commission of offence their presence in the house is not under dispute and the F.I.R. Was registered by complainant purely on the facts disclosed to him by Moula Bux. The complainant not in the knowledge of the other facts such as applicant/accused being restrained by the deceased from visiting his house and that deceased also used to restrain his wife from allowing Mir Hazar to vist his house and she did not pay any heed to the wishes of her husband and used to meet Mir Hazar in the house. The further statement of complainant was recorded by police when these facts were given to him by Abdul Rauf and Abdul Hakeem. P.Ws.
21. Abdul Hakeem and Abdul Rauf have disclosed the facts in their statements recorded by police and they have also stated same facts in their 164, Cr.P.C. Statements recorded by the magistrate coupled with the fact that accused/applicant Mir Hazar also made extra judicial confession before these two persons about the commission of the crime by him. Another important witness Khair Muhammad who used to awaken Muslims so that they may observe fasting in the month of Ramzan Sharif as usual, found Mir Nazar armed with T.T. Pistol coming out from house of deceased alongwith Islam, Imdad and Sikandar. He also heard fire-arm reports but he could not observe anything unusual according to this witness these persons used to go and come out from the house of the deceased. Thereafter, on the inquiry by police he disclosed the above facts to the Police.
22. ' Enmity of whatsoever kind is not alleged by the applicant/accused with the P.Ws., so far. In view of the above factual position I would like to discusslB case-law referred to by learned counsel for the parties. The discussion starts with the case-law cited by Mr. Abdul Fatah Malik.
(i) PLD 1972 SC 81 ' The rule laid down by their lordships in this case is that bail is not to be withheld as punishment and it is not correct to depend on ipso dixit of police regarding guilt or innocence of the accused. In this case police on investigation found accused to be guilty but complainant party consistently maintained that police report was not correct and that real culprits were placed in Column No,2 of the challan by police whereas those prosecuted as accused were innocent. In this state of affairs their lordships held that learned High Court had erred in refusing bail to accused.
(ii) PLD 1972 SC 277 ' The principle laid down in this case is that for purpose of bail, law is not to be stretched in favour of prosecution and benefit of doubt if any arising, must be given to accused. In this case alleged eye- witness (first informant) stated before committing Magistrate that accused fired his gun after deceased had fired at accused's companion. The assertion by the defence was that statements of other eye-witnesses were also in same strain and that possibility of self-defence could not be ruled out whereas their lordships of the High Court without examining evidence of other eye witnesses did not consider this to be a good ground and refused bail. Petition for special leave to appeal was granted by their lordships and accused were directed to renew bail application before learned Single Judge of High Court who was advised to consider whole case for the decision of bail application.
(iii) 1985 SCM R 410 ' In this case accused was awarded death sentence which was also maintained by learned High Court. Being aggrieved appellant filed appeal before Supreme Court and their lordships after analysing and considering the evidence of both eye-witnesses, real brothers inter se and uncles of deceased found that one showed extraordinary strange conduct as closed relative after having seen nephew murderd and other tried his best to suppress certain facts which he had mentioned in his earlier statement. Their lordships held that it was an unwitnessed occurrence and witnesses had seen just dead body of deceased and not occurrence in action. When their lordships discarded the evidence of these witnesses, the only evidence available with prosecution was recovery of bloodstained weapon. Their lordships further opined that even if recovery of bloodstained weapon is believed, this can only be used as evidence corroborating testimony of eye-witnesses but since testimony of eye-witnesses has been excluded, recovery was hardly of any use and accused was acquitted in the circumstances.
(iv) 1995 SCM R 1350 ' It would be very much relevant to reproduce the relevant part of this case which reads as under:- ' "On perusal of the record we find that the appellant was known to the complainant as he had either been working at his residence or his younger brother was working there and he used to visit his house or he and his family members were working at his field; if he would have been one of the culprits his name would have been given in the First Information Report, by the complainant. His implication subsequently in the case is mala fide and no reliance can be placed on the evidence of prosecution implicating him in the case. The trial Court and the Federal Shariat Court has not attended to this aspect of the case."
23. ' In view of this state of affairs their lordships did not consider the further statement made by first informant whereas in the case in hand complainant in any case is not an eye-witness. He was not present at the time of incident. He lodged the F.I.R. On the facts given to him by Moula Bux the brother-in-law of deceased and cousin of applicant/accused Mir Hazar both of whom were present in the house of the deceased at the time of commission of crime as per the prosecution case itself.
(v) 1995 SCM R 932.
24. ' In this case Muhammad Hussain petitioner/complainant wanted to seek leave to appeal from the order of learned Single Judge of Lahore High Court whereby bail was allowed to the respondent in a murder case. According to facts it was unwitnessed occurrence and the evidence collected by the prosecution against the respondent was to the effect of recovery of blood-stained hatchet at his instance about two months after the occurrence, extra judicial confession allegedly made by him about the commission of murder before two witnesses and he was seen alongwith others near the place of occurrence on the night of incident. Their lordships refused to grant leave.
25. ' With due respect to the authority, the facts of this case are quite distinguishable from the case in hand. As mentioned hereinabove Moula Bux and Mir Hazar used to reside in the house of deceased being the brother and cousin of the wife of deceased. At the time of incident they were also present in the house. Complainant lodged F.I.R. On the facts given to him by Moula Bux. Ultimately complainant came to know that deceased used to restrain Mir Hazar from visiting his house and also remonstrated his wife but both did not hea' him. According to prosecution case Mir Hazar applicant/accused was seen coming out of the house during night time with T.T. Pistol by Khair Muhammad Soomro a person who used to awaken the Muslims at Sehri time it being the month of Ramazan Sharif. The accused/applicant is alleged to have made extra-judicial confession before Abdul Hakeem and Abdul Rauf. Police is also alleged to have recovered a T.T. Pistol, from his possession. The cumulative effect of this evidence shows that this authority in any case is not relevant to the present case.
(vi) 1996 PCr.LJ 771.
26. ' In this case also appellant was convicted by trial Court to suffer R.I. For 7 years and to pay fine of Rs,10,000 for offence under section 304, Part I, P.P.C. The witnesses in the case were declared hostile.
27. The Mashir of recovery also did not support the recovery of gun. Moreover, the crime weapon was sent to ballistic expert nearly two years after its recovery. The Magistrate who recorded judicial confession of the accused was not examined because of his death. Therefore, learned Single Judge of this Court considering the evidence to be insufficient allowed the appeal of the convict.
(vii) 1997 SCM R 1836.
28. ' In this case also bail was granted to the female accused by Sessions Court which was cancelled by a learned Judge of the High Court. Their lordships of the Supreme Court have observed that High Court while declining bail to male accused had also not adverted to the contention that he could not be connected with the murder of the deceased on statement of deceased's father after 9/10 days of the occurrence and his case called for further inquiry and further that High Court on the contrary had taken into consideration extraneous circumstances while deciding the bail matters. Petitions for leave to appeal were converted into appeals and both the accused were admitted to bail by their lordships.
29. ' Reverting to the case-law cited by learned A.A.-G. It may be observed that in 1990 SCM R 579 the facts of the case are that accused/respondent was involved in a murder case in which there was no eye-witness. Prosecution collected circumstantial evidence against the accused consisting of statement of the witnesses made before police and recovery of hatchet from accused who alongwith his co-accused was seen throwing something in canal on the night of occurrence.
30. Deceased was killed by strangulation and it was alleged by a witness in his statement that accused had borrowed a 'Parna' which he had used for murder of deceased. Their lordships of the Supreme Court found the case to be of circumstantial evidence and observed that it should have been left for trial Court to examine evidentiary value of such evidence and accused/respondent was not found entitled to be released on bail and his bail was cancelled. Here in this case also no doubt there is no ocular evidence but motive is alleged by the prosecution that Mir Hazar was being suspected by deceased to be in toe with his wife and he also complained to his brother about this fact and also restrained and remonstrated his wife not to meet Hazar Khan in his absence in his house. In their 164, Cr.P.C. Statements P.Ws., Abdul Rauf and Abdul Hakeem' have stated that applicant/accused made extra judicial confession before them for killing deceased Abdul Khalik Soomro and Chair Muhammad mohalla person who used to awaken Muslims for observing fast at Sehri time also found Mir Hazar coming out from the house of deceased having pistol in his hand alongwith Imdad, Sikandar and Islam.
31. ' The F.I.R. In any case is lodged only to the effect that a cognizable offence has taken place and police has to investigate the case and finalise the same. It is strange to note that in this case the complainant lodged that F.I.R. On the facts which were disclosed to him by Moula Buz the brother of wife of deceased and cousin of Mir Hazar Accused/applicant who is also cousin of the wife of deceased who was having illicit relations with wife of deceased and prima facie it is a motive for commission of the crime.
32. ' The case-law referred to hereinabove by Mr. Abdul Fattah with due respect is not attracted to the facts of this case and I am of the firm opinion that it is of no help to the applicant/accused while the case-law referred to by Mr. Zawar Hussain Jafri learned A.A.-G. Is relevant and helpful to the case of the prosecution.
33. ' The contention of learned A.A.-G. That possibility of tampering of the prosecution evidence at the hands of accused/applicant cannot be ruled out if he is released on bail, is not without substance, which also requires serious consideration.
34. In this case as mentioned hereinabove prosecution has collected circumstantial evidence and I am of the firm opinion that prima facie there are sufficient grounds to believe that the accused/applicant is guilty of the offence for which he has been charge-sheeted. Consequently, bail application is, rejected.
35. ' The applicant/accused may repeat the bail application before trial Court after evidence of material witnesses referred to herein above is recorded if he is so advised.
36. ' Above are the reasons for the short order dated 11-9-1998.