1. ' By this order, I intend to dispose of criminal bail application filed on behalf of applicant Shah Murad in a case bearing crime F.1.R. No,57 of 2001 of Police Station Naudero for an offence under section 302, P.P.C. The bail plea of the applicant was declined by the learned Additional Sessions Judge, Ratodero vide order dated 30-10-2001.
2. ' The facts germane to the prosecution story are that on 22-6-2001 at 8-30 a.m. Complainant Mumtaz Ali Kalhoro appeared at Police Station Naudero and lodged F.I.R. Alleging inter alia that his daughter namely Mst. Shahmiran was given in marriage with Shah Murad. On the eventful day, in the morning as the complainant alongwith his brother Turail was sitting in his house when he was informed by one Shah Nawaz that on last night as the complainant alongwith his family was sleeping in his house when at 2-00 a.m. He heard fire-arm reports coming from the house of Shah Murad. It is alleged that they went to the house and found Shah Murad standing in a room, who was armed with a gun and Mst. Shahmiran and Ajeeb son of Jhangal. Kalhoro were lying on the floor of the room. They had sustained fire-arm injuries and were dead. In the meanwhile neighbour Nadir Ali Shar alongwith others emerged there and the said Shah Murad disclosed in their presence that he had killed his wife Mst. Shahmiman while she found in compromising position with Ajeeb Kalhoro inside the room and in a fit of grave and sudden provocation he killed both of them. The accused thereafter decamped from the scene of offence. The complainant party found Mst.
3. Shahmiran having sustained injuries on stomach; she was bleeding and was dead, Ajeeb Kalhoro was also seen who has sustained fire-arm injuries on neck, arms and other parts of the body . He was bleeding and was also dead, Leaving Nadir Ali on corpses of both the deceased for taking care, complainant approached the concerned police station where he lodged an F.I.R as above.
4. The investigation followed and in due course, the applicant was sent up to stand trial in the Court of law.
5. ' It has been contended by the learned counsel for the applicant that the bail plea of the applicant has been moved on the sole ground of affidavit as according to them, complainant Mumtaz All Kalhoro, P.Ws. Shah Nawaz and Turail Khan have sworn in their affidavits before the learned Additional Sessions Judge, Ratodero wherein they have stated that on the eventful night they were sleeping in their respective houses when they heard commotion coming from the house of accused Shah Murad, whereupon they rushed to the place, of occurrence and found Mst.
6. Shahmiran and Ajeeb lying dead. On 22-6-2001 as all the P.Ws. Were sleeping in their houses when they heard commotion coming from the house of accused Shah Murad and consequently they rushed towards the said house and on reaching they saw the dead bodies of sister-in-law Mst.
7. Shahmiran and one unknown lying on the ground, whereas accused Shah Murad was found weeping and on enquiry he disclosed that he was sleeping in the house and woke-up on noise of "thieves" "thieves". Later on there had been a grappling in between accused Shah Murad and the thieves , which ultimately killed two deceased persons . It has further been contended by the P.Ws.
8. In their affidavits that they had neither seen nor identified the culprits on the fateful night. Learned counsel for the applicant has referred to the unreported cases of Muhammad Saffar v. State (Cr.
9. B.A.No, 937/97), Asghar Ali v. State (Cr.B.A.No,595/2001), Imdad Ali and others v. State (Cr.B.A.No,523/2001), Javeed Ahmed v. State (Cr.B.A.No,D-629/2001), and Roshan and another v.
10. State (Cr.B.A.No,446/2001) and the reported decisions of Muhammad Nawaz alias Najja v. State (1991 SCM R 1 1 1), Muhammad Hayat and others v. State (1988 SCM R 474), Bashir Ahmed and others v. State (1994 PCr.LJ 739) and Khadim v. State (2001 PCr.LJ 464) in support of his contentions.
11. ' On the other hand, Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General appearing on behalf of the State opposed the grant of bail on the ground inter alia that grant of bail on the plea of affidavits amounts to tampering of the evidence. He has further contended that each case has its own facts and circumstances and as far as the facts and circumstances of the case in hand are concerned, the applicant does not deserve the grace of bail in terms of further inquiry. He has referred to the cases of Mst. Bashiran Bibi v. Nisar Ahmad Khan and others reported in PLD 1990 SC 83, Naseer Ahmed v. State (PLD 1997 SC 347) and Mehbood-ul-Hassan v. State (1995 SCM R 1013) in support of his contentions.
12. ' 'I have given my anxious consideration to the arguments of respective parties and perused the record. I have also gone through the citations relied upon by the learned counsel for respective parties.
13. Admittedly, the parties have taken somersault and buried their hatchets and as consequences whereof all the P.Ws. Namely complainant Mumtaz Ali, P.W. Shah Nawaz and P.W. Turial Khan have sworn in their affidavits in the Court of learned lncharge Additional Sessions Judge. Ratodero exculpating the applicant from commission of crime in which they have stated in clear and two- fold terms that on the eventful day i,e, 22-6-2001 in the morning as they were present in their respective houses, they heard commotion and fire-arm reports coming from the house of Shah Murad and consequently they rushed towards their house where they found accused Shah Murad standing there. They also found Mst. Shahmiran and Ajeeb lying dead inside the room having sustained fire-arm injuries by which they disown the earlier story as given in the F.I.R. And the statements of P.Ws under section 161, Cr.P.C. Besides the learned counsel for the applicant argues that the applicant has got a very good case for bail on merits inasmuch as the perusal of very F.I.R.
14. Shows that it is quite an unwitnessed crime and none of P.Ws. Shown in the has seen the actual occurrence. The whole case hunches on the statement of the accused Shah Murad, which is inadmissible under the Evidence Act. As far the law cited by the learned counsel for the State is concerned, the same is not applicable to the facts and circumstances of this case. In the case reported as PLD 1990 SC 83 the affidavits sworn in were filed by the Advocates. They of course were not shown as an eye-witnesses of the occurrence in the F.I.R. Or the statements of P Ws., therefore, the facts and circumstances referred hereinabove are not close to the facts and circumstances of the case in hand. In the second case namely PLD 1997 SC 347 there were in all about six witnesses and all of them were injured, out of them only two swore their affidavits exonerating the accused from the commission of crime, whereas the remaining four had not sworn their affidavits. In the last-cited case namely 1995 SCM R 1013 only complainant has sworn in their affidavit.
15. ' In view of the above legal position and case-law cited at the bar, I am of the view that learned counsel for the applicant Shah Murad son of Muhammad Khan Shar has been able to make out a case for bail which accordingly is granted to him provided he furnishes a solvent surety in the sum of Rs,2,00,000 (Rupees two Lacs) and P.R. Bond in like amount to the satisfaction of the trial Court.