1999 PLP 979 (MLD)

"I reside on the aforesaid address and I am permanent R/o village Ameen Walla Post Office Mattalla, Tehsil Liaquatpur, District Rahimyar Khan, where I used to cultivate my own land. My son Muhammad Ashraf came from Jeddah, Saudi Arabia about 2 months back. Now a days I have come to Karachi. My daughter-in-law Shamim is on illicit intimacy with Anwar and in that connection there was a dispute in the house. My' Samdhi,' Bashir Ahmad had quarrelled with Anwar about 2 months back. He prohibited Anwar from visiting the house and gave beatings to his daughter Shamim. Yesterday in the night, Hyder brother of Anwar came to the house and demanded money from Ashraf on which my daughter-in-law asked Ashraf to pay Rs.

25. At about 12.00 in the night I went to roof and slept there. In the morning at about 6.00 a.m. I woke up and came down stairs where I, saw Ashraf was lying in the room and his body and face were towards earth. After taking bath etc. I again went in the room of Ashraf and tried to move Ashraf, but he did not move. I checked his pulse and found that he was dead. I informed all the members of family and sent for his in-laws. Ashraf's brother-in-law Shakeel and other relations reached. Ashraf had injuries around his neck. I have doubt that Ashraf has been killed by strangulation with rope. At about 3.00 p.m. I and other relations brought dead body of Ashraf at Jinnah Hospital. I have serious doubt that during night Anwar and Haider entered in the house and by putting the rope around the neck of Ashraf they have killed him by strangulation." After usual investigation applicants/accused were sent up to stand trial. They applied for bail before the trial Court but the same was refused by impugned order dated 6-1-1998. Mr. Muhammad Akbar Khan, learned counsel has contended that applicants/accused are innocent and they have been implicated due to enmity, that the F. I. R. has been lodged after about ten hours of the incident and that the false implication of applicants/accused cannot be ruled out; that there is no eye witness of the incident against both the applicants/accused; that only suspicion has been shown against the applicants /accused; that both applicants /accused are bread winners of the family that they are entitled to bail. Mr. Ashiq Hussain Mehar, learned counsel appearing on behalf of State has frankly conceded to the grant of bail and has further stated that there is not an iota of evidence against the applicants/accused except suspicion. I have heard the learned counsel for the applicants/accused and also learned State counsel. I have perused the documents filed in support of bail application and the impugned order dismissing the bail application. It is an admitted position that the alleged offence took place on 20-7-1997 in the night in between 2400 to 600 hours (12.00 to 6 a.m.) and F. I. R. was lodged at 2100 hours (9 p.m.) whereas distance between scene of offence and Police Station is about one kilometre and absolutely no explanation with regard to this inordinate delay has been given in the F. I. R. or in the statements of P. Ws.' 'recorded under section 161, Cr.P.C. Record further reveals that on the same day i.e. at about 1630 hours (4.30 p.m.) initially Medico-legal Officer Dr. Muhammad Shafi Bandoli of J. P. M. C. phoned the Police and apprised them that dead body of deceased Muhammad Ashraf was A brought in the Hospital and Complainant Nawab Din informed him that he has suspicion that some unknown person has committed that murder of his son by strangulation. This information was incorporated by Police in daily diary vide Entry No. 23 dated 20-7-1997. It shows that at initial stage even doubt was not shown in any person. Subsequently, at about 9.00 p.m. when F. I. R. was lodged only suspicion has been shown therein against the applicants/accused. The ocular and circumstantial evidence is completely lacking in its case. It is cardinal principle of criminal jurisprudence that suspicion, however, strong cannot take place of proof. Considering the above facts and circumstances of case and no objection rightly given by the learned State Counsel I am of the view that case of applicants/accused requires further enquiry as contemplated under section 497, Cr.P.C. By the short order dated 23-2-1998 I granted bail to the applicants/accused and above are the detailed reasons for the said short order. Here I would like to observe that all the above observations are tentative in nature and the trial Court shall not be influenced while finally disposing of the case. The trial Court will be at liberty to come to its own independent findings on merits after the evidence is recorded H. B. T./H-61/K Bail granted.