1. ' By this order I propose to dispose of Criminal Bail Application No,50 of 2002 in a case bearing Crime F.I.R. No,62 of 2000 of Police Station Kubo Saeed Khan for an offence under section 302 read with section 34, P.P.C. The bail plea of the applicants was declined by the learned Sessions Judge, Larkana vide order dated 19-1-2001.
2. ' The prosecution story as enunciated in the is that on 5-11-2000 at 10-00 a.m. Complainant Muhammad Hussain Buriro appeared at police station and lodged an F.I.R. Alleging inter alia that on the eventful day as he alongWith complainant Muhammad Hussain, his brother Arbab and cousin Sono all the three sons of Sarang Buriro 'started from their village to the village of his brother Punhal namely Zar and after having dinner were busy in chit chat. In the meanwhile (1) Gudoo, (2)
3. Ramzan both sons of Bashir Ahmed Buriro came inside the house as it was their usual custom. They took Punhal outside the house for Kutchery purpose whereas complainant alongwith two others remained inside the house. At 7-30 p.m. They heard cries of murder murder on which the complainant Muhammad Hussain, Sono and Arbab took their torches and rushed towards the place from where cries were coming. They flashed their torches, saw and identified the accused namely Bashir Ahmed, (2) Ramzan, (3) Ibrahim, (4) Gudoo Buriro by Caste resident of Shandadkot and were standing there. Out of them Ramzan was armed with gun whereas the remaining were armed with hatchets. Gudoo raised a Lalkara disclosing that nobody should come near them as he had declared Mst. Sumera his wife to be Kari with Punhal. At this accused Ramzan fired from his gun at Punhal who after receipt of the shot fell down whereas the two remaining accused who were armed with hatchets gave backside hatchet blows to Punhal. The complainant party being empty-handed could not go near the culprits due to scare. They raised cries and commotion on which the people from the vicinity came running and the culprits while looking at them decamped from the scene of .The offence. Thereafter, the complainant party saw Punhal who had sustained one fire-arm injury on right side of the face just above the ear; it had crossed through and through.
4. The deceased had sustained in all seven injuries, No,1 being fire-arm, 7th injury by sharp-cutting weapon whereas the remaining 5 injuries appeared to have been caused by means of hard and blunt substance, he was bleeding and ultimately died. Due to odd hours of night and lack of conveyance, the complainant could not approach the concerned police station within time but ultimately the F.I.R. Was registered as above which was reduced into writing in a book under section 154, Cr.P.C. The investigation followed and in due course the applicants Ramzan and Guddoo were shown arrested whereas Ibrahim and Bashir Ahmed were declared absconders. On 12-1-2001 learned counsel for applicants Ibrahim and Bashir Ahmed made an application for bail in anticipation of their arrest but instead of granting relief of pre-arrest bail, learned Sessions Judge passed an order by which he took the custody of the applicants Ibrahim and Bashir Ahmed and remanded them to jail which constrained the learned counsel for applicant to make another application being made under section 497, Cr.P.C. Learned Sessions Judge after hearing both sides dismissed the bail plea of the applicants Ibrahim and Bashir Ahmed which constrained the learned counsel for the applicants to make this application.
5. ' I have heard learned counsel for the respective. Parties and perused the record. It has been contended by the learned counsel for the applicant that the case against his clients is false and they have been falsely implicated in the background of enmity as disclosed in the F.I.R. It has further been contended that according to F.I.R. The present applicants though nominated in F.I.R.
6. But during the course of investigation, the case against them was found false and their names were placed in Column No,2 of the charge-sheet. The prosecution in this regard had examined P.Ws. Sono and Arbab and their statements were recorded under section 161, Cr.P.C. But later on in their statements made under section 164, Cr.P.C. And they have given clear go by to their version, in which it has been disclosed that on 4-11-2000 at about 11-00 p.m. Both the P.Ws. Sono and Arbab were busy in talking with Hussain when Ramzan and Guddo came and called Punhal and as they were busy in talking at 12-00 a.m. (night) they heard cries of Punh1. They rushed towards the place of occurrence when he was having a torch in his hand. It was alleged that they saw Ramzan being armed with gun whereas Guddo was having hatchet in his hand. They disclosed that nobody should come near, as Punhal is their Karo. It is said that Ramzan directly fired on Punhal and Guddo inflicted hatchet blows to Punhal. They further disclosed that they had seen only Ramzan and Guddo while killing Punhal, but none else. It has also been contended that the ocular version of the complainant is not in line with the medical evidence, as according to F.I.R., accused Ramzan being armed with gun who was alleged to have fired on the person of deceased Punhal whereas remaining four accused being armed with hatchet were alleged to have caused hatchet injuries by means of sharp as well as hard blunt substance, but the medical evidence disclosed that deceased has sustained seven injuries. The injury No,1 being lacerated punctured wound being caused by fire-arm whereas the injuries Nos. 2 to 6 were caused by hard blunt substance whereas the injury No,7 was caused by sharp-cutting weapon, which shows that the ocular version is not in the line with medical evidence. It has lastly been argued that nothing incriminating has been secured from the possession of the applicants. On all these scores, it has been contended by the learned counsel for the applicants that it is a fit case where the applicants could be enlarged on bail. Learned counsel referred the cases of Shah Baz Gul v. The State 1984 PCr.LJ 2495, Muhammad Jaffar v. The State 1987 PCr.LJ 1338, Mir Muhammad and another v. The State 1993 PCr.LJ 88, Nadeem Burney v. The State 1999 M LD 1259, Akhtar Zaman v. State 2001 YLR 2076 and Ghafoor Ahmad v. The State 2000 YLR 2362 in support of his contentions.
7. ' On the other hand Mr. Sher Muhammad Shar, learned Assistant Advocate-General appearing on behalf of the State, however, opposed the grant of bail on the grounds that the names of the applicants appear in the F.I.R. Applicant/accused fired from his gun at the deceased, while applicant/ accused Bashir Ahmed gave hatchet blow to deceased. He further submits that statements under section 161, Cr.P.C. Were recorded on the day of incident and both the P.Ws. Sono and Arbab have fully supported the prosecution case in which they implicated the accused.
8. Learned State Counsel further contended that these two applicants were shown as absconders while submitting the interim challan and 164 statements of P.Ws. Arbab and Sono were recorded after about 2-1/2 months, in which they have exonerated the present applicants, which shows the mala fide on the part of Investigating Officer, who wanted to give benefit to the accused persons, is transparent.
9. I have given my anxious consideration to the arguments of the learned counsel for the respective parties and perused the record which shows that it is a case of two versions one given in F.I.R. And another recorded in the statements under section 164, Cr.P.C. According to the F.I.R., it has been disclosed that accused Ramzan being armed with gun fired at Punhal, as he was declared Karo with his wife Mst. Sumera and after receipt of the fire he fell down, whereafter the remaining accused namely Bashir, Ibrahim, Guddo being armed with hatchets, gave blows to deceased Punhal by means of sharp as well as hard blunt substance as a consequence whereof deceased Punhal fell down and died whereas according to the 164, Cr.P.C. Statements of P.Ws. Sono and Arbab it was disclosed by them that Ramzan being armed with a gun fired at Punhal and Mehboob being armed with a hatchet gave hatchet blow to Punhal as a consequence whereof Punhal fell down and died. As per statements of these two witnesses they have not seen the applicants Ibrahim and Bashir at the spot nor they have taken part in the incident. Besides nothing incriminating was secured from the possession of the applicants. The fact that out of three eye- witnesses namely complainant Muhammad Hussain and P.Ws. Sono and Arbab, two eye-witnesses have not supported the case of prosecution recorded under section 164, Cr.P.C. The evidence of complainant alone is not enough to substantiate the case of the prosecution on the point of pima facie, which calls for further enquiry. In the circumstances, both the applicants are enlarged on bail subject to their furnishing solvent sureties in the sum of Rupees two hundred thousand each and P.R. Bond in the like amount to the satisfaction of the trial Court.
10. Criminal Bail Application No,50 of 2002 stands disposed of.