' Applicants Noor Hussain, Ghulam Hussain alias Hussain Bux and Khanoo alias Khan Muhammad and co-accused Ali Nawaz are facing trial for an offence punishable under sections 302, 201, 342, 506,2, read with 353/34, P.P.C. Bail has been declined to them by the trial Court, hence they have approached this Court.
2. The case of prosecution as disclosed in the F.I.R., lodged by complainant Ali Gul at Police Station Ghous Pur n 14-3-1999 at 12-00 hours is that there was a matrimonial dispute between the parties, as the complainant's cousin Shamir son of Piaro Bhayo hand got his brother betrothed to daughter of Mumtaz which displeased the relatives of Mumtaz including his cousin co-accused Ali Nawaz and others. The F.I.R. Shows that on 13-8-1999 the complainant, his brother Ali Nawaz (the deceased) and Ali Sher had taken their buffaloes to B.S. Feeder because of mosquitoes and were sitting at the bank of B.S. Feeder when at 11-00 p.m. Accused Ali Nawaz, Noor Hassan, Ghulam Hussain and Ghulam Muhammad appeared duly armed with guns. They were identified in the light of torch. They challenged the complainant party why they had got the hand of the said girl.
Accused Ali Nawaz and Noor Hassan made direct fires at complainant's brother Ali Nawaz, who raised a cry and fell down. All the accused persons on the point of guns tied the hands of complainant party with piece of cloth and then Noor Hassan and Ali Nawaz raised the guns at them while accused Ghulam Muhammad and Ghulam Hussain dragged the dead body of Ali Nawaz and threw it into B.S. Feeder. The accused persons stood there up to Azan time of Fajr prayers and then decamped issuing threats. The complainant party with the help of divers tried to search out the dead body but could not trace it and then at 12-00 noon they lodged F.LR. The accused persons were arrested on 21-8-1999 and guns were secured from accused Noor Hassan and Ali Nawaz.
' Learned counsel for applicant advanced the bail plea inter alia on the following grounds;--
(i) it is improbable that the accused persons after commission of murder would stay there up to Fajr time; (ii) the source of identification being flash of torch light is a weak piece of evidence and further no torch has been secured by the police during investigation; (iii) the divers have not been examined during investigation; (iv) there is a considerable delay of 13 hours in lodging of the F.I.R.
And the explanation offered is not plausible in absence of statement of divers; (v) the P. Ws. Are related to the deceased and because of enmity they have motive to implicate the accused falsely;
(vi) the benefit of doubt can be extended to the applicants at the bail stage; and (vii) in view of these circumstances, coupled with the opinion of second Investigating Officer, who had found the applicants to be innocent, the case called for further enquiry.
3. In support of his contentions learned counsel relied on Ali Nawaz v. The State 1988 PCr.LJ 1736 and Shabbir Hussain Shah v. The State 1990 M LD 1055 where it has been held that when identification in a dark night is based on the torch light or even lantern there is possibility of mistaken identity. He cited Noor Muhammad v. The State 1993 PCr.LJ 1517 (Lahore) where bail was granted to the accused on the basis of opinion of Investigating Officer who had found the accused persons innocent. He further referred to Syed Ahmed Ali Rizvi v. The State PLD 1995 SC 500 and submitted that if grant of bail, in the circumstances was warranted, it may not be withheld as punishment.
Similarly, he placed reliance on Syed Amanullah Shah v. The State PLD 1996 SC 241 on the point that usually there is involvement of innocent persons and if any reasonable doubt appears in the case of prosecution thai may be extended to the accused. He also referred to Khadim Hussain v. The State 1989 PCr.LJ 2432 where the question of mistaken identity due to identification on torch was considered by this Court and it was observed that the decision of superior Courts on the point had become rule of law, it could be followed in bail proceedings also. He also relied on Ghulam Asghar v. The State 1985 SCM R 1946 wherein while granting bail in view of the other circumstances, recovery of crime weapon was considered to be of little value.
4. Mr. Muhammad Ismail Memon learned State Counsel vehemently opposed the bail plea and submitted that:--
(i) the crime weapons have been recovered from accused Noor Hassan and Ali Nawaz while two empty cartridges have also been secured from the place of incident;
(ii) blood was found at the place of incident at the time of inspection of site;
(iii) the names of applicants are mentioned in the F.I.R. And specific role has been assigned to them;
(iv) the applicants/accused persons are relatives of the complainant party and they are known to each other, therefore, there is no possibility of mistaken identity even on torch light;
(v) no doubt torches were not secured but there is sufficient oral evidence that the accused persons were identified in the light of torch;
(vi) there is strong motive for commission of offence;
(vii) two accused persons directly fired at the deceased while two others dragged the dead body and threw it into B.S. Feeder and thus, all of them actively participated in the commission of offence; and
(viii) the opinion of the second Investigating Officer who conducted reinvestigation is not binding on this Court particularly when he did not record further statement of complainant and P.Ws.
4-A. I have carefully considered all these arguments. There can be no cavil to the principles laid down in the authorities cited by the learned counsel, but with due respects, in view of the given set of facts and circumstances of this case, the same do not advance the plea of bail on behalf of applicants.As far the delay in lodging the F.I.R. Is concerned, it has apparently been explained in the F.I.R. Itself through complainant and then the other witnesses have also supported his version, therefore, the explanation cannot be discarded straightaway at this stage. The evidence of motive for commission of offence has not been questioned and on the contrary a plea has been taken that it furnished a ground for false implication. This point of fact can very well be determined after examining the witnesses at the trial and any opinion before hand would not be desirable. The Investigating Officer has found blood at the place of incident and crime-empties have also been recovered. Further, there is sufficient oral evidence to show, prima facie, that after commission of murder, the culprits caused disappearance of the dead body. No doubt the torches have not been produced and as argued by learned counsel flash of torch is not strong source of identification but while making tentative assessm ent of evidence at the bail stage the Court cannot simply ignore the ocular evidence on the point that the accused persons were well-known to the complainant party and even at the time of occurrence they had allegedly issued threats to the complainant party as to why they (the complainant side) had obtained their hand.
5. However, these points even for the purpose of bail can be considered if at least the complainant and two eye-witnesses are examined at the trial. In this context learned counsel points out that the trial Court was lying vacant and even the charge has not yet been framed.
6. In the aforesaid circumstances, the bail plea cannot be sustained but while dismissing the application for bail the case is transferred to the Sessions Judge, Jacobabad who may try the same himself or transfer it to any other Additional Sessions Judge for trial and at least the complainant and two eye-witnesses shall be examined within a period of three months hereof. It will be open to the applicants to repeat the application for bail after three months. The application stands disposed of accordingly.