' The applicants seek bail after arrest in Crime No,3 of 1999 of Police Station Fatehpur, registered under sections 364, 302 201 and 34, P.P.C.
2. The case of prosecution is that on 5-4-1999 complainant Ali Bux went to see his brother-in-law Gulshan, aged about 26/27 years, in village Imam Bux Mir Bahar, who was present in the house.
After staying with him for some time after sunset time he accompanied the complainant, who set out for his village and when at about 8 o'clock in the night they reached near Jamia Masjid of the village, they saw Iqbal, complainant's nephew and his cousin Naban standing. Meanwhile applicants Bachal, Sikandar, Khadim and Luqman, all by caste Mir Bahar, their relatives arrived there. Out of them Luqman had gun in his hand, who asked Gulshan that they have come to take him in order to catch fish from the river, but Gulshan told them to accompany with them in the morning due to odd hours of the night, but they insisted and took him away. The abovementioned applicants returned to their house after 2/3 days, from whom the complainant inquired about Gulshan, who told him that they had left him with Dilber, Karim Bux and Mohram Mir Bahar in village Gulshan Kalhoro, Taluka Dokri, who were catching fish from the river and will come back within 2/3 days. On the day of lodging of F.I.R., complainant, his nephew Iqbal and cousin Naban in the morning inquired from Bachal Mir Bahar and others about Gulshan, Who told them that he had left for village about two days ago and do not know as to where he has gone. The complainant further stated in the F.I.R. That about 20 days ago Gulshan had demanded the hand of Mst. Gul Bano from Bachal Mir. Bahar, which annoyed Bachal and it was learnt that applicant Bachal had leveled allegation being Karo with Mst. Gul Bano, his daughter and it might be that because of that reason the applicants in collusion with each other killed Gulshan.
3. I have heard Mr. Muhammad Ayyaz Soomro, the learned counsel for the applicants and M/s. Ahmed Ali M.M. Shaikh for the complainant and Mr. Azhar Ali Tunio, Assistant Advocate-General for the State at length.
4. It is contended by the learned counsel for the applicants that this is an unseen incident and the applicants have been involved in the case due to suspicion. He next contended that the delay of 11 days in reporting the matter further weakens the case of the prosecution, particularly when such delay has not been explained by the complainant. According to him the cause of death is shrouded in mystery as admittedly the dead body of deceased Gulshan was not at all recovered.
On the basis of last seen evidence alone in absence of any other direct or indirect piece of evidence the allegation against the applicant requires further inquiry and they are entitled to the right of bail. In support of his contentions he has relied upon the case-law reported in 1986 PCr.LJ 283, 1999 M LD 979 and 1995 SCMR 923.
5. On the other side the learned counsel for the complainant and the learned Assistant Advocate- General vehemently controverted the arguments of the learned counsel for the applicants and argued that Paws Iqbal and Naban in their 161, Cr.P.C. Statements have fully supported the version of the complainant. They next contended that P.Ws. Rajab and Ghulam Rasool have also implicated the applicants and in their respective 161, Cr.P.C. Statements they have stated that on 5- 4-1999 they had gone to Dokri and after purchasing household articles, while returning at about 9- 30 p.m. When they reached on the river at the entrance path of Pir Muhammad Shah, they heard two fire shots. They had torch in their hands and flashed the same and found deceased Gulshan lying on the ground and was struggling and also saw applicants Bachal and Luqman having onus and Sikandar and Khadim with hatchets standing and were causing hatchet blows to the deceased. They at that time declared that he was their Karo. They next contended that a gun was said to have been recovered from applicant Luqman as such the applicants do not deserve the concession of bail. In support of their contention they relied upon the case-law reported in 1995 SCMR 1766 and PLD 1994 SC 65.
6. According to the F.I.R., the allegation against the applicants is that of last seen evidence only, who, as per version narrated in the F.I.R., had taken away deceased Gulshan on 5-4-1999. As per F.I.R., no one had seen the actual incident of commission of offence. The statements of P.Ws. Rajab and Ghulam Rasool are said to have been recorded on 9-5-1999. Whereas the matter of taking away deceased is as old as 5-4-1999. The version given by these two witnesses requires serious consideration as they admittedly have remained silent for about one month and four days, for which no plausible explanation has been furnished by them. Apparently there seems to be no justification for them to remain silent as they were not only the caste-fellows of the deceased, but were residing in the same village. Furthermore, delay of nine days in reporting the matter to police, for which no plausible explanation has been put forth casts serious doubt on veracity of the F.I.R.
And incident itself. The complainant's version regarding the motive in the F.I.R. That the deceased was on illicit terms with Mst. Gul Bano daughter of applicant Bachal, whose hand was demanded for marriage by the deceased, was the reason for commission of offence, requires further probe to be determined at trial mainly for the reasons that how it is possible in such situation that deceased would accompany his enemies so that he may be murdered. Irrespective of this, the complainant party allowing deceased to accompany the applicants and also reporting the matter to police after 11 days are additional grounds to bring the case of the applicants within the ambit of subsection (2) of section 497, Cr.P.C. In the case of Jahangir v. The State reported in 1986 PCr.LJ 283, referred above, the accused were admitted to bail exactly under the similar circumstances as the case in hand. This Court in the case of Haider Jamal and others v. The State reported in 1999 M LD 979, after taken into consideration the delay of 15 hours in lodging of F.I.R. And non-explanation of inordinate delay in recording 161, Cr.P.C. Statement of witnesses, granted bail to the accused. The Hon'ble Supreme Court in the case of Muhammad Hussain v. Afzal Ahmed, reported in 1995 SCMR 923, refused to grant leave against the order of the High Court allowing bail to the accused in the case, the occurrence of which was un-witnessed and the evidence against accused consisted of bloodstained hatchet at his instance about two months after ' the occurrence, extra-judicial confession allegedly made by him before two witnesses, and his having been seen alongwith others near the plate of occurrence on the night of occurrence. The case-law referred by the learned counsel for the State and complainant is on cancellation of bail and is thus on different facts and circumstances.
7. For what has been discussed above, I am of the opinion that the case against the applicants required further inquiry as contemplated 'by subsection (2) of section 497, Cr.P.C. They are granted bail and shall be released on furnishing solvent surety in the sum of Rs,1,00,000 each and PR bond in the like sum to the satisfaction of the learned trial Court.