' The bail is sought by the applicant Godho in Criminal Bail Application No,36 of 2001, arising out of Crime F.I.R No,81/1997, under sections 302, 324, 337-H(II), 148 and 149, P.P.C, registered with Police Station Kashmore. The bail plea was urged in the Court of 2nd Additional Sessions Judge, Kandhkot, which was dismissed by him vide order, dated 18-1-2001.
2. The brief facts, giving rise to the case of the prosecution, are that on 9-6-1997 complainant Moti @ Yara Jorkani, Mazari by Caste, appeared at Kashmore Police Station and lodged F.I.R alleging that on the fateful night i.e, 8-6-1997, at about 9-00 p.m. As they were sitting in the courtyard of their house, when his two brothers namely Niazoo and Barkat were sitting in the nearby Otaq, it is said that (1) Mirza, (2) Miandad @ Mando, (3) Godho son of Soomaar and (4) Godho son of Sukhio, all by Caste Gulwani Mazzari, and two more unidentified persons were found standing outside the house. It is said in the F.I.R that all the accused were armed with Lathies excepting accused Godho son of Sukhio and two unidentified persons who stated to be armed with guns. The F.I.R further states that accused Mirza raised a 'Lalkara' disclosing that they have always been claiming fine from them and that today they will not be spared. Saying that much, he gave lathi blow to him with an intention to kill which hit him on his head. Miandad gave lathi blow to him which hit him on his nose. On the intervention of his deceased father, he was rescued. It is further alleged in the F.I.R that Godho son of Soomaar also gave lathi blow to his father which hit on nose and above the eyes as a consequence whereof he fell down by raising cries. On commotion, complainant's brothers Niazoo and Barkat came running, but in the meanwhile the culprits decamped from the scene of offence by making aimless firing. Thereafter, the complainant say his father Umar who had sustained injuries on nose and above the eyes, he was bleeding and was dead. The complainant goes on to say that he also sustained injuries on nose and back. He further states that due to odd hours of night he had not approached the concerned police for the registration of F.I.R, but next morning he appeared and filed his F.I.R which Was recorded as above.
3. The investigation followed and in due course all the accused named in the F.I.R, were sent up to stand trial in the Court of learned 2nd Additional Sessions Judge, Kandhkot, excepting present applicant, whose name was placed in Column No, 2 of the charge sheet.
4. It has been pinpointed by the learned counsel for the applicant that material available before the Investigating Officer during course of investigation was to the extent that he recorded 161, Cr.P.C. Statements of the defence witnesses namely Hazoor Bux and Bukhsh Ali on 15-1-1998 on the basis of which the present applicant was let off by the police and his name was placed in Column No, 2 of the charge sheet. It has also been further pointed out by the learned counsel for the applicant that these statements were recorded with delay of seven months and ten days of the incident. Besides this, he has also argued that the F.I.R is belated by 12 hours inasmuch as the incident had taken place on 8-6-1997 at 9-00 p.m whereas the report was lodged on the following day at 8-30 a.m he further argues that the F.I.R is silent regarding source of identification on which the culprits were stated to be identified. Learned counsel for the applicant has referred to the clses of Qaim Din v. Muhammad Suleman and others (1990 SCM R 421), Mastan v. Additional District Judge, Banu and others (1999 PCr.LJ 469), Hakam Ali v. State (1987 PCr.LJ 1308) and Muhammad Khalid v. State (1987 PCr.LJ 1301), in support of his contentions and prayed for grant of bail.
5. Learned counsel for the State opposed the grant of bail on the ground, inter alia, that the delay in F.I.R is well-explained inasmuch as the incident has taken place during the course of night and availability of conveyance was a question to be seriously looked into. He has also argued that the specific role has been attributed to the present applicant; the ocular version is in line with the medical evidence. He has also argued that the recovery of non-blood stained lathi is immaterial in the light of the decision reported in Zahid Shah v. State (2001 PCr.LJ 134). In these circumstances, he opposed the grant of bail to the applicant.
6. I have carefully considered the arguments of the respective parties and have also come across the case file. It is an admitted position that the name of the applicant transpires in the F.I.R, the 'delay in recording the F.I.R has been explained inasmuch as the incident has taken place during odd hours of night and the circumstances to arrange conveyance could be beyond the control of the complainant. The fatal injury is specifically attributed to the present applicant. The version of the complainant and P.Ws. Is corroborated by the medical evidence. It is case of strong motive. The fact that the name of the applicant has been placed in Column No,2 of the challan is immaterial for the reasons that it has to depend upon the soundness of the material. The record shows that the witnesses, who were examined in the defence of the applicant, their statements were recorded with delay of seven months and ten days which has adversely reflected on the defence version. In case of Waqar-ul-Haq v. State, reported in 1985 SCM R 974, applicant was refused bail on the plea of alibi holding that the opinion of the Investigating Officer, as to petitioner's innocence, was not bona fide and as such, it cannot influence the mind of the Court. Reference is also made to a case reported as Liaquat Ali v. The State (PLD 1994 SC 172). In the cited case, bail was granted to the petitioner by trial Court on the ground that two investigating agencies found the accused innocent and such finding was based of moral testimony of certain defence witnesses, but the High Court reversed the finding of trial Court on the ground that specific role assigned to the accused in the F.I.R. Was supported by the testimony of two eyewitnesses. It was held by the Supreme Court that High Court was justified in not relying upon the opinion of Investigating Officers and order refusing bail to accused was held not suffering from any illegality or infirmity. Keeping in view the principle laid down in the above cited decisions, the law referred by the learned counsel for the applicant has not hearing on the facts and circumstances of this case and, as such, bail application is dismissed.
7. The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.