1. ' Present applicants are seeking bail in Crime No,22 of 2001 registered with Police Station K.T.
2. Mumtaz under sections 302, 201, 148 and 149, P.P.C. He moved bail application before the trial Court but without success. Hence this application.
3. Brief facts of the case are that on 6-8-2000 at 8-30 hours complainant Mst. Hidayat Khatoon Agani lodged F.I.R. At Police Station K.T. Mumtaz stating therein that about three months ago his nephew Wahab Agani had come and said that he is going to arrange Faisla between complainant party and Ayoub Agani. Thereafter, complainant alongwith her son Shah Muhammad aged about 17/18 years accompanied said Wahab and came to the house of her nephew Mujahid Agani and stayed there. The allegation against the present applicants and co-accused namely and respectively Ayoub, Suhib Ali and Sabal are that the complainant handed over her son Shah Muhammad in the company of five accused persons who killed him in the jungle and thereafter his dead body was thrown in the Indus River.
4. ' Learned counsel for the applicant has submitted that the offence has taken place about three months ago and report has been lodged after the delay of three months which goes unexplained by the prosecution. He has further contended that the evidence against the present applicants is the last-seen evidence which is weakest type of evidence and their complicity in the offence is yet to be established at the time of trial. He has further contended that co-accused namely and respectively Ayoub and Suhub, on the same allegations have been granted bail by the trial Court and the present applicants have been refused bail. He has further contended that the present applicants are entitled to the concession of bail on the principles of equity and consistency. In support of his contentions, he has placed reliance on 1979 SCM R 9 and 1983 SCMR 102 wherein Honourable Supreme Court has granted bail to the accused whose case is falling in the similar situation of the co-accused who have been granted bail by the trial Court.
5. ' On the other hand, Mr. Memon for the State, has opposed the grant of bail and has contended that statements under section 164, Cr.P.C. Of P.Ws. Namely and respectively Shah Nawaz and Hidayatullah were recorded on 9-9-2000 wherein they have stated that they learnt that the dead body of deceased Shah Muhammad has been thrown in the Indus River and it became known to them three months ago from the date of recording their statements under section 164, Cr.P.C. Mr. Memon has not been able to answer to the query of this Court as to why co-accused Ayoub and Suhub have been granted bail by the trial Court on the same allegations which are being reaped by the present applicants.
6. ' I have considered the arguments rendered by learned counsel for the parties and have gone through the material available on the record and the impugned order. Admittedly, it is the case of prosecution that deceased Shah Muhammad was given in the company of five accused namely and respectively Ayoub, Suhub, Mujahid, Wahab and Sabal and thereafter, Shah Muhammad was killed by the accused and his body was thrown in Indus River which has not been traced out till today. Admittedly, the witnesses namely and respectively Shah Nawaz and Hidayatullah had heard with regard to the extent that the present applicants had thrown dead body of deceased Shah Muhammad in Indus River and yet they remained hands tied and tongue tied for three months and thereafter, they got their statements recorded before the Magistrate on 9-9-2000 under section 164, Cr.P.C. And in those statements they have stated that they had learnt three months ago that they had seen the deceased in the company of accused and that they had heard that the dead body of deceased was thrown in the Indus River by the accused aforenamed. The aforenamed witnesses have kept mum for three months and they had not gone to any police station nor they conveyed any message to the complainant and their remaining hands tied and tongue tied for three months makes their conduct dubious and they cannot be termed as independent and honest witnesses and their evidence at the moment is at stake. The other piece of evidence is last- seen evidence which is weakest type of evidence and I have noticed with jade and critical eye, the order of the trial Court that co-accused on the similar allegations have been granted bail by the trial Court and the present applicants had been refused to bail on the same allegations and the trial Court has failed to apply its judicial mind on the facts of the case. Present applicants are also entitled to the concession of bail on the principles of equity and consistency and taking into consideration the law of Honourable Supreme Court reported in 1979 SCM R 9 and 1983 SCMR 102, I am of the considered view that the present applicants have been able to make out prima facie a good case for bail. Accordingly they are granted bail in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of trial Court.