2009 PLP 1459 (YLR)

MAQBOOL AHMEDAWAN, J.--The applicants are lacing trial in Crime No.65 of 2007 of Police Station Tando Allahyar for offences under sections 302, 147, 148, 149, 109, P.P.C. in the Court of IIIrd Additional Sessions Judge, Hyderabad in Sessions Case No.203 of 2007. The applicants namely Habib son of Ibrahim and Ismail son of Chutto both by caste Masarak, applied for bail and upon hearing, their plea was turned down vide order, dated 12-4-2008 by the learned Additional Sessions Judge (III), Hyderabad. Now both the applicants approached this Court for bail. The prosecution story as narrated by the complainant in F.I.R. lodged by him on 21-4-2007 at 1600 hours at Police Station Tando Allahyar is that:-- I reside in village Darya Khan Masarak Taulka and District Tando Allahyar and have my own land which I cultivate myself; that Ibrahim and Usman Masarak have enmity with us over the water and land and are not on good terms with us; that Nabi Bux Masarak and his brothers are the persons of criminal types who earlier were residing in the same village but due to their involvement in crimes, they have left the village about 7/8 years back; that they are relatives of Ibrahim Masarak and used to visit them; that about two months back Nabi Bux and others had taken away my uncle Muhammad Siddiquie with them from the village and left him after issuing threats, saying to him that today they leave him but if they come again they will kill him; that last night, guests namely Muhammad Amin Khashkeli, Abdul Sattar Khaskheli and Usman Sathio had come to the complainant party from Tando Muhammad Khan; that I along with my father Nim, brother Anwar, uncle Muhammad Siddique,' Aslam son of Allandino Masarak, Haider son of Haji Bunhoon Masarak, Mir Muhammad son of Abdul Karim and Ismail son of Yaqoob were chitchatting with guests in the Otaq of uncle Muhammad Siddiquie. The electric bulb was on, when at about 2300 hours, in the night, suddenly eleven armed persons entered inside from the gate of Otaq and were identified on the electric light to be

1. Nabi Bux,

2. Idrees,

3. Hussain all sons of Gul,

4. Attaullah son of Muhammad Rahim,

5. Habib son of Ibrahim who were armed with KKs,

6. Aali son of Ibrahim,

7. Mour son of Haji Jumo,

8. Umer son of Limo,

9. Soomar alias Baghar son of Mitho,

10. Anwar son of Mitho and

11. Ismail son of Chutto, all by caste Masarak, armed with small weapons, asked us not to speak and raised their hands at us. The accused separated Nim, the father of complainant, brother Anwar, uncle Muhammad Siddique and guest Muhammad Amin son of Muhammad Rahim Khashkeli and made straight fire upon them who fell down and died. Thereafter, the accused went away. The complainant thereafter, came at Police Station and lodged the F.I.R. as stated above. The police took up the investigation, arrested the accused/applicants and after completing the usual investigation, showing co-accused Ali Muhammad,

2. Bachoo and Ismail in Column No.2, while placing the names of co-accused Nabi Bux, Idrees, Hussain, Attaullah, Mour, Umer, Soomar, Anwar and Usman as the absconders, submitted the challan in the Court of Civil Judge and Judicial Magistrate, Tando Allahyar on 9-5-2007. On receipt of challan, the learned Magistrate sent up the case to the Court of learned Sessions Judge, Hyderabad for trial, from where the case was received by learned Additional Sessions Judge, (III), Hyderabad for trial. The learned counsel appearing on behalf of the applicants argued that there appears no reasonable ground to believe that applicants have committed any offence whatsoever; that the delay in lodging of F.I.R. for about 16 hours has not been plausibly explained by the complainant; that from reading of the F.I.R., it is clear that the same has been lodged after deliberations and consultations, conducting the post-mortem of deceased, their burial, inspection of vardat, the preparation of mashirnamas and argued that the F.I.R. has, therefore, lost its sanctity which was lodged after completing the above formalities and the entire case is doubtful; that the incident is occurred on 20-4-2007 whereas the statements of witnesses were recorded after considerable delay of 6/7 days which suggest that the witnesses had not seen the incident. The learned counsel further argued that co-accused Ali Muhammad alias, Aali son of Ibrahim nominated in the F.I.R. found innocent and was released under section 497, Cr.P.C.; that co-accused Bachoo, Ismail and Ibrahim's names have also been shown in Column No.2. But till today the complainant or .State has not filed the application for joining them as accused that the police. on 25-10-2007 submitted the repot stating therein that complainant exaggerated the story and also number of accused and opined that in this case only two accused i.e. Idrees Masarak and one unknown dacoit are involved and the rest of accused are innocent; that the above report as taken on file by the learned trial Court; that no incriminating article recovered from the applicants. The learned counsel in support of his contentions, has relied upon the case of Kouro and another v. The State, reported in 2004 YLR 2434, the case of Parial v. The State, reported in 2006 PCr.LJ 1212, the case of Saleh alias Mohammad Saleh v. The State reported in 2008 PCr.LJ 113, the case of Mohammad Yasin v. The State reported in 2008 MLD 438 and the case of Ramzan and 3 others v. The State reported in 2008 YLR 2086, respectively and contends that under similar circumstances, the bail ' was granted finding the case to be of further enquiry. The learned counsel Mr. Muhammad Azeem Panhwar for State assisted by Mr. Ayaz Hussain Tunio, learned counsel for complainant, opposed to the grant of bail. I have heard the learned counsel for applicants, learned counsel for State, learned counsel for complainant and perused the material on record with their kind assistance. After going through the facts of the case and the law cited by learned counsel for the applicants. I am of the considered view that prima facie the applicants have made out the case for grant of bail as envisaged under sub-clause (2) of section 497, Cr.P.C. for the reasons that the delay of about 16 hours in lodging of the F.I.R. has not been plausibly explained though the Police Station is situated at 12 K.M. away from the place of vardat, secondly delayed statements of P.Ws. examined by Investigating Officer after about 6/7 days who are said to be eye-witnesses of the incident, creates serious doubt about their presence at the place of vardat and witnessing the incident, thirdly letting off co-accused named in the F.I.R. has not been challenged by the complainant by moving the application for joining them as accused, fourthly as per the report of police the accused named in challan have been falsely implicated by complainant party. The report further reveals that in fact accused Idrees and one unknown accused are the real culprits who had committed the offence, fifthly the non-recovery of any weapons from the applicants, sixthly, the enmity shown between the parties. The case-law relied upon by the learned counsel for the applicants fully supports the case of the applicants. From the above discussion, I come to the conclusion that the applicants succeeded in making out the case of further enquiry, therefore, I allow this application and order that the applicants be released on bail on their furnishing surety in the sum of Rs.200,000 (Rupees two lac) each and P.R. Bonds in the like amount to the satisfaction of the learned trial Court. H.B.T./H-21/L Bail granted.