1. The facts leading to the present application for bail are that applicant/accused A.I Hyder son of Amir A.I Shar, Noor Mustafa son of Amir A.I Shar and A.I Nawaz son of Amir A.I Shar are facing trial in Sessions Case No.11 of 2000 before the Assistant Sessions Judge, Mirwah District Khairpur under sections 307, 324 read with section 3.4, P.P.C. It arose out of F.I.R. No.53 of 1994 of Police Station Mirwah.
2. The facts of the prosecution case as disclosed by the complainant in the F.I.R. Registered on 11-5- 1994 are reproduced hereinbelow.-- "Complaint is that I have got my own land in Deh Mangho Fakir in which there is a fish pond which is being irrigated from Mirwah Canal Water Course No.R-103. Due to construction of road from Thad Mirwah to Jiskani village via Bazdar Wada near the water--course, some stones and earth was accumulated in the watercourse hence for the purpose of removing stones and earth from the said blocked water course I took labourer namely Khair Muhammad son of Bheley Dino,
2. Riasat A.I son of Bhaley Dino by Caste Shar and was, getting the stones and earth removed from the blocked water--course when on 10-5-1994 at about 9.0' clock the person namely Amir A.I son of Haji Nawabuddin empty-handed,
2. A.I Hyder son of Amir A.I armed with revolver,
3. Noor Mustafa son of Amir A.I having a hatchet in his hand,
4. A.I Nawaz son of Amir A.I armed with rifle, out of whom Amir A.I raised hakal, instigated and said cc catch hold and not to spare and on saying so accused A.I Hyder fired directly from his Revolver upon me but I went inside the watercourse and the fire was missed by the grace of God and then I raised cries and on my cries Riazat A.I and Khair Muhammad recited Holy Qur'an and the accused while making aerial firing went towards their house. Thereafter, I narrated the facts to Riazat A.I and Khair Muhammad who said that first of all we should appraise our Nekmard Ahmed Bakhsh son of Imdad A.I and, therefore, I went to Nekmard Ahmed Bakhsh who said that he will make faisla on the following day hence I returned back to home and thereafter I went to Ahmed Bakhsh who said that Amir A.I is not willing to agree with Faisla, therefore, I, returned back. I complaint that accused in collusion with intention of murder made serial and direct firing. I am complainant and pray for investigation. "
3. After usual investigation the applicants/accused were sent up in absentia to stand trial.
4. The applicants/accused applied for pre-arrest bail before the learned Sessions Judge, Khairpur but it was declined by impugned order, dated 6-9-2000.
5. I have heard Mr. Ahmeddin Shar learned counsel on behalf of applicants/accused, Mr. Zawar Hussain Jafferi learned Additional Advocate General on behalf of State and Mr. Ghulam Shabir Shar learned counsel on behalf of complainant. Both the latter learned counsel vehemently oppose the grant of bail.
6. I have also perused the material placed on the record so also police record with the assistance of the learned State counsel.
7. The perusal of the record shows that the incident occurred on 10-5-1994 at about 9 a.m. And F.I.R.
8. Was lodged on 11-5-1994 at about) 2-30 p.m. The distance from the Police Station is 5 Kms. No plausible explanation with regard to this inordinate delay has been given in the F. I.R.
9. The F.I.R. Further reveals that applicants/accused A.I Hyder was armed with revolver, Noor Mustafa was armed with hatchet and A.I Nawaz was armed with rifle. They opened. Straight/direct fires upon the complainant but surprisingly enough, the complainant and witnesses remained unhurt.
10. The perusal of the mashirnama of the wardat, dated 11-5-1994 shows that neither the empties were found at the wardat nor any foot-prints were noticed. The statements of eye-witnesses Khair Muhammad and Riazat A.I, whose names transpire in the F.I.R. Were recorded by the Investigation Officer 11-5 1994, wherein they have not implicated the applicants/accused.
11. The statements of both the eye-witnesses i.e. Khair Muhammad and Riasat A.I were recorded on 30-6-1994 by the Mukhtarkar and F.C.M., Mirwah under section 164, Cr.P.C. Both the eye-witnesses have completely exonerated the applicants/accused in their 164, Cr.P.C. Statements from the culpability of the charge. This fact is not controverted by the learned State counsel as well as learned counsel for the complainant. The record shows that during the course of investigation, on 30-7-1994 concerned D.S.P. Recommended for the disposal of the case- as 'cancelled class', For the reasons best known to the Investigating Agency, the report was not submitted before the concerned Court. It is argued by the learned counsel for the State as well as complainant and so also not controverted by the learned counsel for the applicants/accused that on 30-6-1999 P.W.
12. Khair Muhammad was I again produced for second 164, Cr.P.C. Statement before the Civil Judge and F.C.M., Mirwah. His statement was recorded wherein he backed out from his previous statement i.e. Under sections 161 and 164, Cr.P.C. And implicated the applicants/accused. On 22-6- 2000 the applicants/accused were sent up to stand trial as stated hereinabove.
13. The facts stated hereinabove are, suggestive of the fact that the case was launched against the applicants/accused malafidely and dishonestly. For ascertaining mela fide it is not the requirement of law that applicant/accused must mention the record 'mala fide' in. His application.
14. If mala fide is spelled out from the facts and circumstances of the case, the Court can take notice of its and came to the rescue of a person. The liberty of a person is cherished one, which cannot be curtailed on flimsy reasons. The learned counsel for the complainant in support of his contention has relied upon the case of Nasir Javed v. Kazim A.I and others reported in 1999 PCr.LJ 2000 and Muhammad Sajjad v. The State reported in 1999 PCr.LJ 872. The authorities relied upon by the learned counsel are distinguishable, as the facts and circumstances of the cited cases are quite different from the facts and circumstances of the present case.
15. Resultantly I am of the considered view that there, are no reasonable grounds to believe that the applicants/accused are guilty of I the offence and case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. The applicants/accused are granted bail before arrest in the sum of Rs.50,000 each and P.R. Bond in like amount to the satisfaction of the learned trial Court.
16. The observation if any made hereianbove are of tentative nature they may not be considered by the trial Court while finally disposing of the case on evidence adduced by the parties.