2004K4149 (PLP)

By this single order I propose to dispose of pre-arrest Bail Application No.582 of 2003, filed by applicants (1) Kauro son of Shahzad Lakho, and (2) Urs son of Morand Lakho and post-arrest Bail Application No.755 of 2003 filed by applicant Muhammad Waris son of Rahim Dino Sangi as both these applications relate to Crime No.28 of 2003 of P.S. Lakha Road, District Naushahroferoze registered on 1-9-2003 under section 302/34, P.P.C.. at the instance of complainant Shafi Muhammad Sangi.

2. Facts of the case as narrated in the F.I.R. appear to be that on 1-9-2003 at about 7-30 a.m. complainant heard that somebody was calling his father Saeed Khan outside the house. He and his father responded to that call and went outside the house where they saw Qadir Bux son of Shahzad and Urs son of Morand Lakho (applicant No.2) standing there. They allegedly asked the father of the complainant that they had to talk to him and took him towards West in the cotton crop. The complainant went back inside the house. At about 10-30 a.m. he heard a call from backside of his house and as such he alongwith his paternal-uncle Muhammad Ibrahim Sangi and maternal-uncle Bashir Sangi went there and saw that the accused

1. Qadir Bux

2. Muhammad Urs

3. Kauro and one unknown person with open face were standing there. They allegedly told the complainant to have the dead body of Saeed Khan. They further told that despite their warnings from time to time the complainant had not shifted from the land to some other place hence they had killed Saeed Khan and went away. Neck of Saeed Khan found broken and there were signs/marks of burning on his body. Saeed Khan was found lying dead. Due to cries so many persons from neighbourhood were attracted. The complainant claimed to have tracked the footprints which lead towards the cotton crop of Khair Muhammad Sangi where marks of struggling were visible. The complainant further stated that after leaving the witnesses over the dead body, he went to his landlord and narrated him the above story who informed the police on telephone and advised the complainant to meet nekmard Ghulam Abbas, Advocate. The complainant went to meet Ghulam Abbas but he was in Court hence the complainant went on waiting for hint When Ghulam Abass came back from the Court complainant narrated the story to him who asked the complainant to lodge such report with the police whereafter the complainant reached at P.S. and lodged such report on 1-9-2003 at 2300 Hours.

3. Applicants Kauro and Urs on coming to know that they have been implicated in this case, obtained protective bail from this Court on 9-9-2003 and thereafter approached die learned Sessions. Judge, Naushahroferoze for pre-arrest bail, as the applicants were apprehending of their arrest at the hands of the police at the instance of the complainant who has implicated them at the behest of Ghulam Abbas, Advocate with mala fide intentions and ulterior motive to cause insult, humiliation and harassment to them. Their bail appliation was rejected on 26-9-2003 by the learned Sessions Judge, Naushahroferoze, whereafter they approached this Court. Interim bail before arrest was granted to them by this Court on 1-10-2003.

4. According to Mr. Sardar Akbar Ujjan learned counsel applicants are innocent and have been falsely implicated due to dispute over the lease of land between the applicants party and the said Ghulam Abbas, Advocate who wants to involve the applicants in this false case which has been registered at his instance who wants to get the applicants arrested with mala fide intentions for causing insult and humiliation to them so as to bring undue pressure to give-up their rights over the land in favour of said Ghulam Abbas. He further argued that the facts narrated in the F.I.R. are nothing but concoction and even a man of ordinary prudence would not believe the same. There is inordinate delay of about 11 hours in lodging of the F.I.R. for which no plausible explanation has been given. As per F.I.R. dead body of the father of the complainant was allegedly brought to his house by the accused themselves at about 1030 hours but no report was lodged till 2300 hours When the Police Station is hardly 8 Kilometer away from the place of incident. The explanation furnished for delay in the F.I.R. is hardly believable. The dead body of deceased Saeed Khan had reached in the Taluka Hospital Kandiaro where post-mortem was conducted at 6-15 p.m. i.e. much prior to the lodging of the F.I.R. as such preliminary investigation appears to have been conducted before the recording of the F.I.R. Learned counsel has therefore, argued that it _ is a case of dishonest investigation as the dead body has been identified in the hospital by Ali Ahmed and Ghulam Abbas, Advocate much prior to the lodging of the F.I.R. hence consultation and deliberation before lodging of the F.I.R. cannot be ruled out. Mr. Sardar Akbar Ujjan learned counsel has further argued that there is no evidence that, deceased Saeed Khan was done to death by, the accused-applicants and at the most it is a case of last seen evidence which too appears to be most unnatural as the people try to conceal their guilt rather to act in the manner as described in the F.I.R. In support of his plea of bail learned counsel for the applicants has relied upon the following cases:- (1) Mst. Karam Jan v. Muhammad Akram and others (1986 SCMR 938); (2) Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344; (3) Ayoob Masih v. The State (PLD 2002 SC 1048); (4) Hussain alias Hussaini v. State (2003 PCr.LJ 815 and (5) Muhammad Jameel v. Shoukat Ali and others (1996 SCMR 1685). On the other hand Messrs Mumtaz Ali S iddiqui and Sher Muhammad Shar, Advocates have opposed to the grant of bail and have argued that the names of the applicants Kauro and Urs are transpiring in the F.I.R. with part assigned to them. They have further argued that no case for grant of pre-arrest bail has been made out as there is evidence of last seen as well as throwing of the dead body of Saeed Khan in the backside of the house of the complainant in his presence as well as that of his two Uncles, hence the application is liable to be rejected. In support of his case Mr. Sher Muhammad Shar, learned counsel for the complainant has placed reliance on the case of Zaheer alias Fauji v. The State (2002 PCr.LJ 1114).

5. Mr. S. Mushtaque Hussain Shah, learned counsel for applicant Waris has argued that the applicant is related to the complainant's side and there is matrimonial dispute between the parties, hence he has been falsely implicated at a later stage. Had he been amongst the culprits, his name would have appeared in the F.I.R. instead of mentioning that an unidentified person was also with the accused who have been named in the F.I.R. Learned counsel has further argued that subsequent disclosure of the names of the applicant in his 162, Cr.P.C. statement by the complainant has absolutely no evidentiary value under the circumstances of the case as it is purely an after thought to implicate the applicant falsely due to the matrimonial dispute. In support of his case, he has relied upon the following authorities:- (1) Tahir Abbas v. The State (2003 SCMR 426) and (2) Shahzado v. The State PLD 2002 Kar. 472.

6. Mr. Sher Muhammad Shar has opposed to the grant of bail to applicant Waris as well, whereas the learned State counsel has raised no objection because despite being related to the complainant side the name of the applicant Waris does not find place in the F.I.R. and one unidentified person is shown to be in the company of accused Qadir Bux, Kauro and Muhammad Uris when they allegedly brought the dead body of Saeed Khan for being handed over to the complainant.

7. I have considered the arguments of the learned counsel for the applicants and learned State counsel as well as Mr. Sher Muhammad Shar, for the complainant.

8. After going through the facts of the case and the case-law cited by learned counsel for the parties in support of their respective contentions I have come to the conclusion that the involvement of the applicants in the commission of the alleged offence requires further enquiry for reasons more than one. Firstly, the story as narrated in the F.I.R. which itself is sufficiently delayed and without any plausible explanation prima facie does not inspire confidence. The fact that deceased was called from his house on the fateful day by the applicant Kauro and Urs and was taken with them on the pretext of talking to him on some point and thereafter the fact that deceased did not return till 10-30 a.m. when the accused/applicants and unidentified person brought his dead body to the house of the complainant for being handing over to the complainant are such type of facts which prima facie do not appeal to the mind of a man of ordinary prudence. Furthermore despite murder having taken place, during the earlier part of the day after 7-30 a.m. and despite having received the dead body at 10-30 a.m at his own house, there appears to be no logic in the explanation given by the complainant that he was all along waiting for Ghulam Abbas, Advocate who was busy in Court and instead of meeting the said Advocate there in the Court even after the Court hours he did not approach the police for lodging of the F.I.R. Furthermore the dead body had already reached at P.S. after telephonic message from the landlord of the complainant whose name has not been disclosed in the F.I.R. Even the post-mortem was conducted whereafter the F.I.R. was lodged hence the sanctity of the F.I.R. has become somewhat doubtful. Furthermore inclusion of the name of the applicant Waris as one of the accused through statement under section 162, Cr.P.C. by the complainant has made his whole story further, doubtful. There are allegations of mala fides and false involvement of the applicants in the case at the hands of Ghulam Abbas, Advocate who is on inimical terms with the accused partly hence the involvement of the applicants with ulterior motive and mala fide intentions appear to have some force. It is, therefore, a fit case for confirmation of the pre-arrest bail granted to the applicants Kauro and Uris on 1-10-2003 and grant of bail after arrest to the applicant Waris in the sum of Rs.2,00,000 and P.R. bond in the like amount to the satisfaction of the learned Trial Court. By a short order, dated 24-12-2003 both these applications were granted and the above are the reasons for the same. Further it is made clear that all the observations made above are tentative in nature and the learned Trial Court shall not be influenced by the same at the stage of trial. H.B.T./K-I9/K Bail granted.