1. The applicants are seeking bail in Crime No,100 of 1999 registered with Police Station Faiz Ganj, District Khairpur under sections 459 and 511, P.P.C. Read with section 337-H(2), Qisas and Diyat Ordinance and have been subsequently sent up to face trial by way of challan dated 27-11-1999 in which one unknown person has been shown as one of the associates of applicants, later on it has been disclosed that Rajab Ali son of Ghanio was one of the companions of the applicants and who has been granted bail by the trial Court which has been stated by the learned counsel for the applicants at Bar. Brief facts of the case are that on 4-11-1999 at 3-15 hours complainant Niaz Ahmed appeared at police station and lodged report stating therein that he has got house surrounded by "Hedge" and at night time after taking supper he alongwith his inmates went to sleep and lantern was burning, at about 11-30 hours night time he saw in the light of lantern and identified the culprits to be namely and respectively Ghulam Abbas son of Ghulam Hyder Mashoori who was standing on his cot with hatchet, Ghulam Asghar son of Muhammad Ibrahim having gun in his hands, Fateh Muhammad alias Fatoo son of Muhammad Leghari armed with Lathies and an unidentified person was empty-handed and they were untethering oxes tethered by the complainant when he raised cries to which Ghulam Abbas gave hatchet blow on his head and such cries attracted his nephew Khadim Ali and Muhammad Ali and they too saw the accused clearly and would be identified, thereafter the accused left the cattle there and made their escape good and on the next morning complainant alongwith Peer Bux who is the footprints tracker followed the footprints of the accused persons which ledthem to village Ranjho Khan Mashori. Thereafter, the accused persons were arrested and sent up to stand trial.
2. The applicants moved bail application before the trial Court but without success, hence this bail application. Learned counsel for the applicants Mr. Syed Mushtaque Hussain Shah has raised the following grounds for grant of bail:--
(1) That, all the applicants have been arrested on 14-11-1999 after 11 days from the date of incident and according to the learned counsel for the applicants since they tracked the footprints of the applicants and there is no explanation from the side of the prosecution as to why there was delay in arresting them.
(2) That, the hatchets and Lathies were recovered from Ghulam Abbas and Fateh Muhammad alias Fatoo respectively which were not blood-stained and have not been sent to expert for opinion, Ghulam Abbas was carrying gun and the same has been fired by him but has not hit anybody and according to medical evidence the injuries on the head of injured Niaz are found due to hard and blunt substance and it can be said that firing has proved ineffective.
(3) That, the identification of the applicants is in the lantern light, which is weakest type of identification.
(4) That, the complainant has nominated the applicants with their names and parentage in F.I.R.
3. But nowhere complainant has stated that he knew applicants intimately and how the names of the applicants became known to the complainant, is a question which can be thrashed out at the time of trial. Finally learned counsel for the applicants has argued that the applicants are victims of police enmity. On the other hand Mr. Nidamuddin Brohi, learned counsel for the State has, opposed the grant of bail to accused Ghulam. Abbas who has been specifically attributed causing injuries on the head of injured Niaz Ahmad complainant, while he has raised no objection for grant of bail to the applicants namely and respectively Ghulam Asghar and Fateh Muhammad alias Fatoo. Learned counsel for the applicants in rebuttal has canvassed that injuries sustained by injured Niaz Ahmed are belied by the medical evidence and has further submitted that section 337-H(ii), Qisas and Diyat Ordinance is applicable at the moment which is not punishable with death or life imprisonment or 10 years' R.I. And is not covered by the prohibition clause of section 497(1), Cr.P.C.
4. He has also relied on a decision of this Court reported in PLD 1985 Karachi 27 relevant page 30. He has further submitted that the application of section 459, P.P.C. Is not free from doubt as the complainant in F.I.R. Has not stated that he knew intimately the accused and how the names became known to complainant is the question which can be thrashed out at the time of trial and the complainant party on one side has named applicants specifically and on the other side the complainant with the help of footprints tracker had followed the footprints of the accused persons and there can be two presumptions either complainant has not seen the accused persons or incident has not taken place in the manner as stated by the prosecution, therefore, the matter calls for further inquiry. He has placed reliance on 1991 PCr.LJ page 4. Mr. S.Mushtaque Hussian Shah, learned counsel for the applicants, has further argued that the applicants are behind the bar since 14-11-1999 and they are in custody for the last more than a year and in this regard he has placed reliance on case reported in PLD 1995 SC page 34 relevant page 37. He has also placed reliance on the point of identification in lantern light on a case reported in 1991 PCr.LJ 882, 1998 PCr.LJ 602 and 1997 PCr.LJ 646. While confronting with the case-law and submissions of the learned counsel for the applicants, learned counsel for the State, Mr. Nidamuddin Brohi, half-heartedly opposed to the grant of bail to applicant Ghulam Abbas.
5. I have considered submissions made by the learned counsel for the parties and have examined the material placed on record and police papers. Admittedly as per the contents of F.I.R., which are the base of the prosecution case, complainant has named the applicants specifically but nowhere he has stated in the F.I.R. That the applicants were known to him intimately and admittedly after the incident the complainant party followed the footprints of the accused persons and has consumed one day and lodged report on 4-11-1999 at 3-15 p.m. And possibility cannot be ruled out that some time has been consumed by the complainant in consultation. When he knew the names of the applicants, he had to go to police station immediately to lodge report and there is no justification to follow the footprints of the accused persons and there-is no explanation from the side of prosecution as to why there is a delay of arrest of applicants when the complainant party knew their names and weapons recovered from the applicants have not been sent to the expert. I have also examined that the applicants are behind the bar since 14-11-1999. Learned counsel for the applicants has cited PLD 1995 SC pages 34-37. Hon'ble Supreme Court has held that "Basic principle is free life and not jail life". Their lordships have further held that whatever the evidence has been collected by the prosecution, tentatively it can be assessed that it may not result in conviction and their remaining behind the bars for indefinite period would be futile. Hon'ble Supreme Court has further held that for instance a bail is granted to accused by Court by mistake, there is compensation that he can be convicted but when the case results in acquittal after long period, in that event there is no compensation and the bird called a "quid-pro-quo" has flown out from the cage means no compensation. In the circumstances, accused cannot be thrown in jail for indefinite period. In the instant case the prosecution has collected the weakest type of evidence and has injected the elements of suspicion in its own version and the case of the applicants becomes a case of further inquiry and I am of the considered view that the applicants have been able to make out a good prima facie case of grant of bail at the moment and accordingly I admit them to bail on furnishing solvent surety in the sum of Rs,100,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.