1. ' Applicant Manzoor Hussain is facing trial in S.C. No.161 of 2004, pending in the Court of 1st Additional Sessions Judge, Khairpur in Crime No.17 of 2004 in offence punishable under sections 302, 201, 202, 109, 120-B, 182, 211 & 34, P.P.C. Registered at Police Station A Section Khairpur. Bail application on behalf of the applicant/accused was filed but it was dismissed vide order dated 20- 4-2004 by the learned 1st Additional Sessions Judge, Khairpur. The applicant/accused has preferred this application before this Court for seeking bail on similar grounds.
2. ' The brief facts as depicted in the prosecution case are that F.I.R. Was lodged on behalf of the State through S.-I.P. Muhammad Ali Bhayo (Investigating Officer) of Police Station A Section Khairpur on 1-4-2004 for the offence taken place on 27-8-2003 at 1100 hours. The contents of such F.I.R. Is reproduced hereinbelow in extenso:-- "On behalf of State, complaint is that I am appointed as APS Section, Investigation Branch. On 27-8- 2003 at 1200 hours, the F.I.R. No.114 of 2003 under sections 302 and 392, P.P.C. Was registered, in which complainant Manzoor Hussain son of Fazal Muhammad Shaikh, had registered the complaint that I am working in Sub-Registrar Office, Sukkur on 27-8-2003 as usual, I was available on duty in the office at Sukkur, where Muneer Ahmed Soomro, Clerk, disclosed that there is serious condition in your house, you immediately go to your home. Wherefrom I immediately came to my house where I saw that my wife Mst. Mubeeiia was available on ground in the sitting room, and she had sustained fire-arm injuries, and was dead. My lady servant Mst. Iqbal informed me that at about 1100 hours, we were sitting in the house, and my wife was sitting in the Waranada on cot, all of a sudden 2 persons came inside from the backside door, who were armed with pistols, whose faces were opened, whom I clearly saw them, who will be identified if seen again. They got down Mst. Mubeena from the cot, and they snatched the worn golden ornaments viz. 3 rings, one chain along with locket, one worn chain in the arm, and took her in the sitting room, where they started maltreatment. Mst. Mubeena asked them that why are you beating me, on which accused persons asked that some outstanding is required towards you, then I immediately went in the Gallerf of another room and started raising cries. Meanwhile the fires were made. I saw towards, the place of incident that both the accused persons went away from the backside door. Due to fire-arm injuries Mst. Mubeena fell down and died on the spot. The' neighbours also came out on my cries, who also saw the accused persons going away. Then I left Jan Muhammad son of Sher Muhammad Mughal for protection of dead body, now I have appeared for lodging of complaint, justice be done. After registration of case, the copy of F.I.R. Was given to me for investigation, I along with police went towards the place of incident and disclosed the place of incident and such Mashirnama was prepared. The lawful disposal of the dead body has been done, and the statement of witness Mst.
3. Iqbal has been recorded and searched for the accused persons during that we were informed by the Rikshaw driver that the accused persons went towards Town side by boarding in his Rikshaw.
4. The statement of Rikshaw driver namely Sulleman Khalid son of Muhammad Hashim Solangi has been recorded, during that the statements of Nadeem Khan Solangi son of Rabnawaz Solangi, Javed Ali son of Ghulam Shabbir Solangi and Khalid Hussain son of Ghulam Rasool Solangi, all residents of Muhalla Dubar, Khairpur, were recorded, who disclosed in their statements that this crime has been done by Naimatullah alias Rajoo and Muhammad Nawaz Memon, resident of near Board Officer, Sukkur, who accepted in our presence that they have done this crime after accepting the money from Manzoor Hussain Shaikh and on his instigation they have done the murder of Mst.
5. Mubeena, on which both the suspected accused Naimatullah alias Rajoo alias Raja and Muhammad Nawaz are being involved, and submitted in the Court of 1st Civil Judge and Judicial Magistrate, Khairpur, and the identification parade has been made by witness Mst. Iqbal and witness Rikshaw driver namely Sulleman Khalid, in which both the witnesses identified both the accused persons, on which both the accused persons arrested in the case, and received the remand order from the Honourable Court. During investigation the accused persons submitted the pistols, used in the .Commission. Of offence, and accused Naimatullah alias Rajoo, submitted the blood-stain clothes, worn at the time of commission of offence, such cases are registered in different crimes bearing Crimes No.12 of 2004 and Crime No.13 of 2004 under section 13-E, A.O. After that on 29-3-2004, the accused persons are produced in the Court of 1st Civil Judge and Judicial Magistrate, Khairpur, where the accused persons accept the guilt in the Court, and disclosed in their statements that at that time the complainant Manzoor Hussain Shaikh, mentioned in this crime, accepted to give the amount of Rs.300,000 for doing the murder of his wife Mst. Mubeena, from which he gave Rs.1,50,000 and promised to give the remaining amount. We make a program with Manzoor Ahmed, and on his instigation we have done the murder of his wife Mst. Mubeena with fires of pistols. After completing the investigation of the case, such report has been submitted before S.P. Investigation, Khairpur, wherefrom we received the Order No.123/1-4-2004 and also received order that the complainant of Crime No.114 of 2003 be accused, therefore, the said first F.I.R. Has been cancelled and new F.I.R. Under sections 202, 211, 182, 120-B, 302, 201, 109, 34, P.P.C. And 13-D, A.O. Is being registered and the detail is to be submitted in the Court'. On receiving such orders I on behalf of State complaining that as the accused Naimatullah alias Rajoo and Muhammad Nawaz Memqn, on the prepared drama of Manzoor Sheikh, accepted the amount from him and on his instigation, they have done the murder of Mst. Mubeena, justice be done."
6. ' The applicant/accused before lodging of the above mentioned F.I.R. An F.I.R. In Crime No.114 of 2003 for the same offence under sections 302 and 392, P.P.C. Was lodged for the office taken place on 27-8-2003 against unknown persons for trespassing in his house and causing murder of his wife and robbing of golden ornaments. The facts of the F.I.R. In Crime No.114 of 2003 of PS A Section Khairpur is reproduced herein below in extenso:-- "Complaint is that I am clerk in the Sub-Registrar Office at D.C.O. Office at D.C.O. Office, Sukkur. I have 3 sons and two daughters from my wife namely Mst. Mubina, aged about 40 years. The children are school going students. Iqbal Shaikh resident of Faizabad Colony was kept as housemaid. Today, in the morning, as usual, all my children were preparing themselves for going to the school, at 0930 hours, and I also prepared myself for going to my duty at Sukkur. My wife, Mst.
7. Mubina daughter of Ghulam Ali Shaikh and house maid were present. Today I was present in the office, one Muneer Ahmed Soomro, the clerk disclosed me that, "there is some serious problem at your home. You may go". I asked him that what happened, who disclosed me that you may quickly go to home. I then went to my home, where, I witnessed that my wife's body was lying in the sitting room, as she had sustained fire-arm injuries and was dead. At there house maid Mst. Iqbal disclosed me that, today, at 11'0 clock, we were sitting in the house and Mst. Mubina was sitting on the cot in the Waranda. Meanwhile, two accused persons entered in the house from the near gate and they were holding pistols in their hands and their faces were opened, to whom, I have thoroughly witnessed, and shall identify on seeing them again. They woke up Mst. Mubina from the cot and removed the gold ornaments worn by her containing 3 rings, one chain, locket along with one chain from her arm, and took her forcibly in sitting room and started bearing her, Mst. Mubina asked them that why you are bearing me, on which the accused persons replied that we have to take revenge from you. So, I at once, raised cries by going at rear side gallery of next room, meanwhile, fire shots were heard. I came at the spot and witnessed that both accused persons went out from the rear gate. Mst. Mubina had received fire-arm injuries at her face, head and other parts of the body. On my cries, neighbourhoods also came, they have also witnessed the accused by going away. In the meantime, Jan Muhammad son of Sher Muhammad Mughal and others also came, to whom house maid Mst. Iqbal narrated the facts. Then leaving them at the dead body for safety, now, I have come to lodge complaint, that two unknown accused persons entered my house, after snatching the gold ornaments, have killed my wife by pistol fires. I am complainant, investigation be made."
8. ' The above-mentioned F.I.R. Was lodged by the applicant/accused on the statement of Mst. Iqbal house servant as she was present at the time of commission of offence and on the cries some neighbours also reached there including one Jan Muhammad to whom she also narrated the incident. Subsequently police .Conducted usual investigation and arrested co-accused Naimatullah alias Rajoo and Muhammad Nawaz for the murder of deceased Mst. Mubina. The above-mentioned co-accused had given statement to the police that at the instance of Jan Muhammad the applicant/accused has been involved in the murder of his wife Mst. Mubina in Crime No.17 of 2004 in which the police had become the complainant on behalf of the State. On the basis of statement given by the co-accused before the police with the connivance of one Jan Muhammad, the police of PS A Section Khairpur raided the house of the applicant/accused. The applicant/accused approached this Court and filed protective bail bearing Cr.B.A. No.271 of 2004 wherefrom he was granted protective bail on 19-3-2004 for the period of 10 days. After seeking protective bail, the applicant/accused approached the learned trial Court by filing Cr. Bail Application in S.C. No.116 of 2003 in Crime No.114 of 2003 but the said application was dismissed by order dated 30-3-2004. As per investigation of PS A Section Khairpur, the present F.I.R. In Crime No. 17 of 2004 was lodged on 1-4-2004. The applicant/accused was arrested on the same date at about 1815 hours and the charge-sheet was filed in the Court having jurisdiction on 20-4-2004 wherefrom the same was sent upto the Court of learned Sessions Judge, Khairpur but it was transferred to the Court of learned 1st Additional Sessions Judge, Khairpur. The applicant/accused filed his bail application after arrest before the learned trial Court but the same was dismissed by order dated 20-4-2004 which is impugned in the present bail application.
9. ' Mr. Imdad Ali Awan, learned counsel for the applicant has contended that the applicant/accused is innocent. He was complainant in Crime No.114 of 2003 but he has been involved in this case on the basis of confessional statement recorded under section 164, Cr.P.C. Of the co-accused Naimatullah and Muhammad Nawaz as the said confessional statements were recorded by the learned Civil Judge/Judicial Magistrate, Khairpui on 29-3-2004 whereas the co-accused Naimatullah and Muhammad Nawaz were arrested on 20-3-2004. The above named co-accused have deposed that they have committed the offence at the instigation of the applicant/accused but no specific part is assigned nor the presence of the applicant/ accused is shown. The confessional statement are inculpatory and the same cannot be used against the applicant/ accused but the same can be used against maker. It is further pointed out that S.P. (Investigation), Khairpur had addressed a letter to the Investigating Officer (S.I.P. Muhammad Ali Bhayo) bearing No.PB/123/04, dated 1-4-2004 by issuing directing that necessary permission is accorded to move the concerned Court for the cancellation of F.I.R. No.114 of 2003 on the ground that during the course of investigation and as per confessional statement of accused, complainant is the accused who got committed this offence but no report was filed before the concerned Court for seeking cancellation of the above mentioned F.I.R. But straightway the F.I.R. Was cancelled on 1-4-2004 on the same day an other F.I.R. No.17 of 2004 was lodged on behalf of the State which is violative under the police Rules (24.7) as the law has provided a procedure for cancellation of the case which was violated. There are two versions of the same incident, therefore, the case of the applicant/accused required further inquiry as contemplated under section 497(2), Cr.P.C. It is further argued that after lodging of F.I.R. No.17 of 2004 on 1-4-2004 by the S.-I.P. Muhammad Ali Bhayo who was himself was.
10. Investigating Officer in Crime No.114 of 2003 which has been lodged after delay of 8 months, which creates doubt that the I.O. Has not believed the first version of the complainant in Crime No.114 of 2003 that prosecution witnesses namely Khalid Hussain Solangi and Javed Ali in their statements recorded under section 164, Cr.P.C. In F.I.R. No.114 of 2003. Before the 1st Civil Judge/Judicial Magistrate Khairpur have stated that co-accused Naimatullah and Muhammad Nawaz have admitted that the murder of Mst. Mubina wife of the present applicant/accused has been done at the instance of present applicant/accused but not plausible explanation have been given as to why the present applicant/accused wanted to kill his wife when the spouses were passing happy life along with their children. The motive is not disclosed by the co-accused as well as by the other witnesses. It is further urged by learned counsel for the applicant/accused that there are conflicting version between 161, Cr.P.C. Statements of prosecution witnesses and the alleged ocular evidence is contrary with the medical report. There is no independent evidence against the applicant/ accused except the confessional statement recorded under section 164, Cr.P.C. Of the co-accused, therefore, the case is covered as one of the further enquiry and the applicant is entitled for the concession of bail.
11. ' Mr. Imdad Ali Awan, learned counsel for the applicant/accused in support of his proposition has relied upon the following case-law authorities:--
(1) Sahbiul Hassan v. The State PLD 1991 SC 898-899 (B);
(2) Mumtaz Ali Shaikh and another v. The State 1993 PCr.LJ 1919 (D);
(3) Pir Mazhar-ul-Haq v. The State 1992 PCr.LJ 1910 (D)(C);
(4) Shafiq Ahmed v. The State 1990 SCM R 237;
(5) Syed Amanullah Shah v. The State PLD 1996 SC 241-242 (C).
12. ' Conversely Mr. Zubair Ahmed Rajpoot, learned counsel appearing on behalf of the State has vehemently opposed this application and submits that during the course of investigation of F.I.R. 114 of 2003 co-accused Naimatullah and Muhammad Nawaz had admitted their guild in their confessional statements recorded under section 164, Cr.P.C. On 29-3-2004 that offence was committed at the instigation of applicant/accused and huge payment was made and the remaining amount was to be paid by the applicant/accused for killing Mst. Mubina. There is recovery of cloth and T.T. Pistol from co-accused Naimatullah and Mst. Iqbal house Servant of the applicant/accused is the eye-witness of the incident she had identified co-accused Naimatullah and Muhammad Nawaz as they killed the deceased Mst. Mubina at the time of incident.
13. I have heard the arguments of the learned counsel for the respective parties, examined the material place on record and the case-law cited at Bar. There are judicial confessions of the co- accused which were recorded by the learned Civil Judge/Judicial Magistrate in which they have admitted the killing of the deceased Mst. Mubina on their part but it is stated that such killing was made on money consideration as .The applicant/accused was motivator/planner of murder of Mst.
14. Mobina. Admittedly Mst. Iqbal Bano house servant of the applicant/accused is the eye-witness of the said incident, she saw two persons who entered in the house of the applicant/accused and killed the deceased (Mst. Mobina) by fire-arms. Co-accused Naimatullah and Muhammad Nawaz had entered in the house of the deceased Mst. Mobina just to create the evidence of dacoity. They snatched the golden ornaments from the deceased, the said co-accused have been identified through the identification parade which was held on 20-3-2004. As per confessional statements of the co-accused no specific part is attributed to the applicant/accused except the instigation. The applicant/accused was even not present in his house on the day of incident. In the confessional statements of co-accused, who have deposed that they committed the offence after accepting huge money partly and the remaining promised amount was to be paid by the applicant/ accused but inculpatory confessional statements cannot be used against the applicant/accused but on the contrary it can be used against the maker. There are two versions of the same incident by lodging two separate F.I.Rs. Showing different accused persons and is yet to be determined at the time of trial as to which of the F.I.R. Is to be believed as correct. The first F.I.R. No.114 of 2003 was cancelled by the Investigating Officer and the second F.I.R. Being Crime No.17 of 2004 was lodged after delay of about 8 months of the incident. There is no corroborative piece of evidence against the applicant/accused except the confessional statement recorded under section 164, Cr.P.C. Of co-accused Naimatullah and Muhammad Nawaz. The case-law cited by the learned counsel for the applicant is also based on the ground of confessional statement of co-accused in absence of any other evidence with the prosecution at this stage except the confession of. The co-accused on which evidence alone, no conviction of the applicant/accused can be sustained at present, there are no grounds to believe that the applicant/accused is guilty of the offence for which he has been charged therefore a case of bail is made out in favour of the applicant.
15. ' Accordingly bail is granted to the applicant/accused in the sum of Rs.2,00,000 (Rs. Two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.
16. ' Cr. B.A. No.209 of 2004 stands allowed.