1. ' We intend to dispose of both the applications by common order. The present applicants are seeking bail in Crime No,21 of 2000 registered with Police Station, Gaji Khuhawar under sections 302, 365, 511, 457, 148 & 149, P.P.C., They moved bail application before the trial Court, but without success.
2. ' It is case of the prosecution that complainant Maqbool Ahmed son of Gul Mohammad Jalbani appeared at Police Station Gaji Khuhawar at 0145 hours, dated 29-4-2000 and reported with police that his brother-in-law Dr. Sukhurduddin Daras and brother Ghulam Mujtaba went to sleep on different cots after closing the door of the house. Dr. Sukhuruddin was their guest at about 12-30 a.m one person awakened the complainant who saw on the bulb lights three persons armed with K.Ks were standing over them and one person armed with gun was standing at the outer door.
3. Those three persons asked the complainant to accompany them outside of the house, but he refused and started dragging him; the complainant raised cries. On his cries and commotions his brother-in-law Dr. Sukhuruddin Daras and brother Ghulam Mujtaba got up and challenged the culprits, all the three persons fired at them which hit them and they fell down. The culprits then dragged the complainant outside of the house where P.W. Manthar Hussain, Peeral and so many other villagers came running while firing as a result of which all the accused persons leaving the complainant ran away. The complainant and P.Ws. Went the injured and found Sukhuruddin and Ghulam Mujtaba lying dead the complainant leaving the P.Ws over the dead body went to lodge the report. The police during the investigation re-examined the complainant as per the terms of section 162, Cr.P.C. On 3-5-2000 who has disclosed by his further statement that his sister Mst.
4. Hameeda was married with Dr. Sukhuruddin Daras about one year prior which annoyed their relatives accused Hamid Ali, Moula Bux Jalbani on 27-4-2000 Dr. Sukhuruddin Daras and his relatives Mohammad Moosa son of. Abdul Latif, Faiz Mohammad, both residents of Taluka Khipro had come as his guest. The complainant alongwith Dr. Sukhuruddin and brother Ghulam Mujtaba was sleeping in the house, while P.Ws. Were sleeping in the otaq on 12-30 a.m. One person awakened him who was identified on bulb light as accused Hamid Ali and Moula Bux both sons of Karim Bux, Sulleman son of Gahi Khan Khuhawar armed with K.Ks standing over them, while Akbar son of Mohammad Hussain Gadehi with gun was standing at the door the accused asked the complainant to go with them, but he refused. The accused tried to drag him, meanwhile on the cries of the complainant, the deceased got up and challenged the accused and tried to get complainant released by accused Hamid Ali fired from his K.Ks. At Dr. Sukhuruddin and accused Moula Bux fired at Ghulam Mujtaba who fell down. After that they dragged the complainant outside of the house but on cries and gunshot reports while other villagers and accused Faiz Mohammad and Mohammad Mossa, and P.Ws. Manthar Hussain, Peeral, on their arrival accused left him and ran away. During their departure and other accused Sohrab was also seen running armed with gun, the complainant and said P.Ws. Went over the Sukhuruddin and Ghulam Mujtaba and found them lying dead. It is further added by the complainant that the accused persons had issued threats not to disclose the names of the accused persons in the F.I.R. And he was under fear, therefore, could not give their names in the F.I.R. Lodged with the police. The investigation was conducted, the applicants were arrested and the prosecution witnesses were examined as per terms of section 161, Cr.P.C. As well as P.Ws. Manthar, Faiz Mohammad, Mohammad Mossa, Peeral were examined under section 164, Cr.P.C. The prosecution witnesses have .Corroborated the further statement of the complainant and present accused/applicants alongwith co-accused Sohrab were challaned showing the accused Akber Gadehi as absconder.
5. ' Learned counsel for the applicants Mr. Asif Ali Soomro and Mr. Altaf Hussain Surahio have argued that the further statement of the complainant has been recorded on 3-5-2000 under section 162, Cr.P.C. As the F.I.R. Is said to have been registered on 29-4-2000. They have further contended that statement of P.Ws. Peeral Manthar Hussain, Mohammad Mossa and Faiz Mohammad were recorded on 10-5-2000 whereas their statements under section 164, Cr.P.C. Have been recorded on 29-5-2000 and such inordinate delay caused goes unexplained by the prosecution. According to them, the present applicants are the residents of the same locality and yet they were not identified by the complainant at the place of vardat and thereafter on 29-5-2000 applicants Hamid Ali and Moula Bux were subjected to identification parade whereas applicant Sulleman was subjected to identification parade on 7-6-2000 and the proper ratio of dummies have not been mixed up with the two accused namely and respectively Hamid Ali and Moula Bux as required under the law as held in Lal Pasand's case. They have further contended that during the identification parade no role has been ascribed to the present applicants and according to them' it is a fit case for grant of bail.
6. ' On the other hand Mr. Ali Nawaz Ghanghro, Advocate for complainant has opposed to the grant of bail and Mr. Gul Hassan Solangi, Advocate for Additional A.-G. For the State has also raised one objection that no enmity has been shown.
7. ' We have heard the learned counsel for the parties and have gone through the material available on the record and also we have examined the impugned orders.
8. 'Admittedly the F.I.R. Has been registered by the complainant on 29-4-2000 wherein he has not named the eye-witnesses namely and respectively Faiz Mohammad and Mohammad Mossa and their names do not appear in the F.I.R. And their statements under section 164, Cr.P.C. Have been recorded on 29-5-2000 and such inordinate delay goes unexplained. Admittedly further statement of the complainant has been recorded under section 162, Cr.P.C. On 3-5-2000 which is not admissible under the law as held in 1993 SCM R 550. We have also seen the Mashirnama of identification parade and admittedly the accused Hamid Ali and Moula Bux were arrested on 15-5- 2000 and 17-5-2000 and Sulleman is said to have been arrested on 6-6-2000 and identification test has been held on 29-5-2000 of co-accused namely and respectively Hamid Ali and Moula Bux whereas identification parade of accused Sulleman on 7-6-2000 and there is delay of 14 days which goes unexplained by the prosecution when the witnesses were available easily at the place of Vardat. We have also seen that no role has been ascribed to the present applicants with regard to the commission of offences as it has been held by the Honourable Supreme Court in a case of Mehmood Ahmad v. State reported in 1995 SCM R 127-128 that it is the duty of the witness who claims to have seen the accused at the time of Vardat and has to describe the role and point out at the accused what role played by accused during the commission of offence and in the instant case no role has been described to the present applicants by the witnesses who have identified them during the identification parade. It has also been held in 1994 SCM R 137 authority given by the Privy Council that the three pieces of evidence cannot be relied from all the angles (i) Evidence of children (ii) evidence of an accomplice and (iii) identification. Even it has been held by superior Courts that the evidence against the present applicants is in the shape of identification parade which is a weakest type of evidence and only piece of evidence against the present applicants is that identification parade which has been held after 11 days which goes unexplained by the prosecution. We find that the present applicants have been able to make out a prima facie good case for grant of bail and their participation in the alleged offence is the question which can be thrashed out at the time of trial and their case is falling within the purview of section 497(2), Cr.P.C.
9. Accordingly, the present applicants are admitted to bail in the sum of Rs, Two lacs each with PR bond in the like amount to the satisfaction of trial Court.