' This is a bail application moved by the applicant Ghulam Hyder, who is involved in a Case Crime No,17 of 2000 for an offence under section 302 read with section 34, P.P.C. Registered with Police Station Fatehpur.
Briefly the facts of the prosecution are that on 25-8-2000 complainant Ghulam Qadir lodged a report at Fatehpur Police Station stating that on the day of incident he alongwith his brother Ayaz Ali were going towards their tube-well machine having torches in their hands. Besides their tube- well machine, Ali Nawaz son of Andal. Khan, (2) Dhani Bux son of Suhrab by Caste Gadehi were flowing water in their lands. At about 9-00 p.m. Night accused Ghulam Hyder son of Rasool Bux armed with pistol and Sajjan son of Mithal armed with pistol came there. Accused Ghulam Hyder abused the complainant by saying that since they have not changed their street, therefore, they would not spare their brother Ayaz Ali and would murder him. In the meantime, accused Ghulam Hyder and Sajjan fired direct pistol shots at Ayaz Ali brother of complainant, with the result whereof he fell down by raising cries. On the cries of complainant and fire-arm reports, the abovenamed witnesses came over there from their lands by challenging the accused persons, who had also torches in their hands and they had also seen the accused persons very well, but the accused persons forbid them not to intervene in their personal matter and then accused persons decamped towards their home by challenging the complainant party. Thereafter, complainant and P.Ws. Went and saw Ayaz Ali lying on the ground and was dead. Then complainant and P.Ws.
Remained there during the night time and in the morning complainant leaving P.Ws. Over the dead body went to police station and lodged his report as aforesaid. After usual investigation police arrested accused persons and challaned them before the Court of law.
' The bail application of the present applicant was moved before the trial Court, but the same was declined by order, dated 25-8-2001, hence he approached this Court for the same relief.
' Primarily the bail application was urged on the ground that there were two versions of the same incident. There was a difference of opinion of the eye-witness and the complainant. It was also argued that one of the accused had been granted bail by the trial Court.
' Complainant also contested this matter and insisted that it was not a case of two versions but in a fact the statements recorded were very clear.
' Both the counsel have relied upon various case laws in support of their contentions which I shall reproduce later.
' The learned Assistant Advocate-General has supported the arguments led by the counsel for the complainant.
' I have gone through the documents which are available on record. The counsel for the applicant has urged several grounds amongst them being that there was a delay of 9 and half hours in lodging the F.I.R. He has also urged that accused Ghulam Haider although being mentioned in the F.I.R. Did not have any specific role attributed to him. In fact generalized statements have been mentioned. Two people were supposed to have fired at Ayaz Ali which had been allegedly witnessed by Ali Nawaz and Dhani Bux. Furthermore, it seems that they were identified on a torch light and the particular torch has not been produced. Lastly whilst relying on general grounds the counsel has produced affidavit of Ali Nawaz and Dhani Bux. Both the gentlemen, in the affidavits have sworn, that they had not seen any body committing murder of deceased Ayaz Ali. They had come running to the scene after the incident. Ali Nawaz has gone further to state that the police had obtained signature on some white papers at the police station. More or less the same version has been given by Dhani Bux. An affidavit has also been sworn by one Ghulam Bashir son of Hamza Ali who is supposed to be Mashir. He insists that the police had called him at the police station and obtained his signatures on some white papers. He also denied that the police had visited the place of Wardat, examined the dead body of the deceased, he also denied that the accused was arrested in his presence.
' With these three affidavits whether rightly or wrongly sworn the fact of the F.I.R. And the complainant's version would be diminished. It is to be appreciated that the complainant Ghulam Qadir son of Muhammad Hassan has mentioned that Ali Nawaz and Dhani Bux were flowing the water in their land. The incident is a night time incident and one has to see whether indeed the witnesses who came running from their lands were immediately available or who arrived at the scene of Wardat after incident had occurred. This is very important because in the absence of these two eye-witnesses the only person left is the complainant and indeed if his version as mentioned in the F.I.R. Is to be read with the version of the so-called eyewitnesses who have sworn affidavits which are in direct contradiction to the version of the complainant then indeed it would be a case worth considering for the grant of bail as it would be difficult to ascertain who fired the fatal shot in the darkness of the night when the only thing available for the purpose of identification was a torch light. When a person is accosted by more than two persons and even if torch light is facing those persons the light is spread only to a restricted width. If the torch light focussed on the faces of the individuals then it would not be possible to ascertain who fired as that portion of the body would be in darkness. Conversely if the torch light was focussing on the hand where the guns or pistols were held then the faces of the persons would be in darkness. In support of his contentions learned counsel for the applicants has relied upon the following case-laws:--
1. Muhammad Nawaz alias Najja v. The State 1991 SCM R 111. In this case affidavit were sworn by the prosecution witness who testified to the correctness and based upon these affidavits bail was allowed.
2. Muhammad Hayat v. The State 1988 SCM R 474. In this case applicants were involved in a case under Zina (Enforcement of Hudood) Ordinance, 1979. Affidavits of witnesses were produced who were mentioned in the F.I.R. And who stated therein that the case registered was false. Objection was raised by the prosecution but the Court held that there was no tampering of record and affidavits of eye-witnesses can be obtained which may not necessarily support the prosecution version. Nobody had come forward to state that the affidavits were taken under coercion. The bail under the circumstances was allowed.
3. Muhammad Javed v. The State 1999 SCMR 328. In this case deceased was killed during night time and there was no eyewitness except the wife. However, she had sworn an affidavit stating that the statement recorded before Police and Magistrate was done under duress. Bail was granted on the ground of further enquiry.
4. Shahbaz Gul v. The State 1984 SCMR 2495. In this case bail was granted to the accused as there were different versions between the F.I.R. And the prosecution witnesses recorded under 164, Cr.P.C.
' In support of his contention learned counsel for the complainant has relied upon the case of Anwar v. The State 1991 PCr.LJ 732 where a single Judge of the Sindh High Court, has refused bail and has not accepted the affidavits of the eye-witnesses. Learned counsel has also relied on the case of Sanaullah and 3 others v. The State 1983 SCM R 15 where the witness had sworn an affidavit but because the complainant had not, therefore, bail was refused. At the time of arguments, which was quite energetic counsel appearing on behalf of the complainant and A.A.G. Have insisted that the complainant version is correct and that a person had died and therefore, the concession of bail should not be granted, keeping in mind the fact that the offence is falling within the prohibitory clause of section 497, Cr.P.C.
Looking at the case-law cited by the learned counsel for the applicants, and the facts and circumstances, I am inclined to grant bail in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court.