1. ' Complainant Haji Abdul Karim lodged F.I.R. On 31-8-1999, which was initially entered in Roznamcha at Police Post Kakar by 12-30 noon which was subsequently, incorporated at Police Station, Khairpur Nathan Shah in 154, Cr.P.C. Book on the same day at 15-30 hours.
2. ' The facts in brief, as narrated by complainant, are that his son Roshan was driver of tractor at Government Camp. He did not go on his duty for about a week. One day prior to the lodging of the first information report Hassan and Usman restrained Roshan from visiting their village. Upon which, they exchanged harsh words. It is stated that on 30-8-1999 Mooso Sati took his son Roshan with him towards Camp. For working on tractor. It is alleged that Roshan did not turn up at night. At about 8-30 p.m., they heard gun fire towards watercourse. On 31-8-1999 at about 10-00 a.m., his nephew Hussain came and informed the complainant that while he was returning from his field after cutting the grass, he saw that dead body of Roshan was lying in watercourse, having gun shot and hatchet injuries on his body. The complainant on knowing these facts accompanied Hussain and Subhan to the scene of offence and found the dead body of Roshan was lying in the watercourse. He left the aforesaid two witnesses at dead body and proceeded to police post where his information was recorded in daily diary. In the end of F.I.R. He has shown suspicion in accused Hassan and Usman as they had exchanged harsh words with Roshan one day prior to the incident.
3. ' The police after recording the F.I.R. Took up investigation and arrested applicants Hassan and Usman on 14-9-1999.
4. ' It is contended by the learned counsel for the applicants that names of accused have been given in F.I.R. Due to suspicion. There is no eyewitness of the occurrence. It is argued that this is unwitnessed incident and for that reason the F.I.R. Is belated by about sixteen hours. It is submitted that the names of witnesses Allah Dino and Muhammad Ismail do not figure in the F.I.R. Before whom the alleged extra-judicial confession is said to have been made by the accused on the night of the incident. They did not disclose this fact to anybody till 3-9-1999. It is submitted that 164, Cr.- P.C. Statements of said P.Ws. Were recorded on 25-9-1999 and in fact their 161, Cr.P.C. Statements were also recorded on said date and not on 3-9-1999. It is contended that the alleged gun and hatchet have been foisted upon the accused and the same would not corroborate the incident in absence of positive evidence. The reference is made to the case of Jahangir and others v. The State 1996 PCr.LJ 283, Muhammad Hussain v. Afzal Ahmed and another 1995 SCM R 932, Ijaz Ahmed and another v. The State 1997 SCM R 1279, Hyder Jamal and another v. The State 1999 M LD 979, Rasool Bux Baloch v. Muhammad Wahid and 3 others 1992 PCr.JJ 2578 and Kabeer v. The State 1998 PCr.LJ 1311.
5. ' Mr. Ali Azhar Tunio learned Assistant Advocate-General in view of the aforesaid facts and circumstances has stated his no objection to the grant of bail. He has stated that 164, Cr.P.C.
6. Statements of said two witnesses are belated by 25 days and there is no ocular evidence against the accused.
7. The contents of F.I.R. Reveal that incident is unwitnessed and the alleged witnesses Allah Dino and Muhammad Ismail did not disclose to anybody about the alleged extra-judicial confession said to have been made before them by the applicants. From the record it appears that they are set up witnesses in order to make out case of the prosecution. The accused have been nominated in the case due to suspicion. The extra-judicial confession itself is a weak piece of evidence which requires independent strong corroboration which is yet to be brought on record in order to prove guilt of the accused. The names of accused were given in the end of the F.I.R. Due to suspicion and admittedly the said two witnesses Allah Dino and Muhammad Ismail had not seen the incident.
8. Their 164, Cr.P.C. Statements are belated by about 25 days. Suspicion, however, strong cannot take place of a proof as a legal evidence to warrant a sentence on a capital charge. The bail in such circumstances cannot be withheld as punishment. The principle laid down in the case of Aijaz Ahmed and another v. The State reported in 1997 SCM R 1279 by Honourable Supreme Court is fully attracted to the circumstances of the present case. The other cases referred above cited at the bar are also applicable to the facts and circumstances of instant case. In view of the facts narrated above, at this stage it cannot be held that the accused are guilty of the offence with which they stand charged and their case is covered by prohibitory clause of section 497(1), Cr.P.C.
9. ' The accused are granted bail in the sum of Rs,2,00,000 each and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.