2008 PLP 842 (MLD)

NADEEM AZHAR SIDDIQI, J.

Applicants Allah Rakhio and Qamaruddin alias Abdul Karim, both by caste Khoso, have requested for bait in crime No.11 of 2004 of Police Station Muhammadpur Odho, District Jacobabad, for offence under sections 302, 324, 148, 149, P.P.C. and 13(d) Arms Ordinance, 1965. In nutshell, the prosecution case as per F.I.R. lodged on 14-5-2004 at 0230 hours by complainant Abdul Munaf Khoso at Police Station Muhammadpur Ohdo, is that on 13-5-2004 at 11-30 p.m. (night) accused persons, namely, Ghulam Rasool, Muhammad Nawaz, armed with Kalashnikov, Gade Ali, armed with Rifle, Abdul Hakim with Kalashnikov, Muhammad Hassan; Siddiq, both with rifles, along with three unidentified persons .with shotguns, entered the house of complainant and on the pretext of revenge of murder of Durrani Khoso committed murders of Mst. Soni, Mst. Mariam, Ali Dost and Mst. Sardaran and attempted to commit murder of Ramzan and Ali Bux, son and nephew of the complainant respectively and caused them fire-arm injuries. The applicants' request for bail was declined by the trial Court on the ground that four persons had been murdered in the case, there is sufficient material to connect the accused with the commission of offence and the offence falls within the prohibitory clause of section 497(1), Cr.P.C. and that though eye-witness Ali Bux, examined during trial, has not supported the prosecution, but he had identified the accused in identification parade and implicated him in 164, Cr.P.C. statement. Learned counsel for the applicants has argued that the name of the applicant does not appear in the F.I.R. or in 161, Cr.P.C. statement of any of the alleged eye-witnesses. He further contended that the incident is of dark night and identification on torchlight was not possible. It was further contended that P.Ws Ramzan and Bux Ali in their 164, Cr.P.C. statements have disclosed that they heard that unknown accused were Imanuddin and present applicants Allah Rakhio and Qamaruddin alias Abdul Karim. It was also contended that trial of the case has commenced, during which P.W. Bux Ali, alleged eye-witness of the incident, and one mashir of place of incident, have been examined and both of them have not supported the prosecution case as such the case required further enquiry into the guilt of the accused. Learned State Counsel while opposing the bail application argued that in this case four persons were done to death in their house. He further contended that except for P.W. Bux Ali, there are three other eye-witnesses of the incident and their evidence remains to be recorded by the trial Court, therefore, the applicants are not entitled to bail. I have heard the learned counsel of the parties and perused the material collected by the prosecution and made available before me. The incident is very sad, in which three innocent ladies and one minor were killed. The case is pending since last more than thirteen years and only three witnesses were examined. The names of the present applicants are not appearing in the F.I.R. and 161, Cr.P.C. statements. However, they were implicated on the basis of 164, Cr.P.C. statement and it is not known how the witnesses came to, know about the involvement of applicants. The eye-witness has not supported the version by saying that "we saw 8/9 accused persons with muffled faces with deadly arms". The mashir has also not supported the version by saying that "nothing was secured from the place of incident. Police took only my LTI on white paper". That fact that the names of applicants are not present in the F.I.R. and 161, Cr.P.C. statement, the possibilities of false implication of the applicants as an afterthought cannot be ruled out. Furthermore the deposition of Ali Bux creates doubt with regard to involvement of applicants and the benefit of doubt is to be examined to the applicants. In the case of Syed Amanullah Shah v. The State (PLD 1996 SC 241) the Hon'ble Supreme Court held as under:-- "Whenever reasonable doubt arises with regard to the participation of an accused person in the crime for about the truth or probabilities of the prosecution case and the evidence proposed to be produced in support of the charge, the account should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial." In view of the above, a case of further enquiry has been made out as in the presence of above facts it cannot be certainly said that there are reasonable grounds for believing that applicants have committed an offence falling under the prohibiting clause of section 497, Cr.P.C. The bail was allowed by the short order passed today, above are the reasons for the same. H.B.T./A-21/K Bail granted.