Cr. Bail Application No.460 of 2009.

For hearing.

6.7.2009. Mr. Abdul Qayyum Shaikh advocate for the applicant.

Mr. Ali Hyder Dareshani advocate for the State.

The applicants are seeking bail in Crime No.24/2009 P.S Sobhodero U/s 302 & 34 PPC.

The facts leading to the present bail application are that complainant Mazhar Ali lodged FIR of the above crime on 27.2.2009 at 1945 hours alleging therein that he and his brother Khair Muhammad cultivate the land of Rustam s/o Samzan Samtio on harap basis and that land is near the houses of Bashir Ahmed Samtio. Bashir Ahmed Samtio was annoyed with complainant party on cultivation of such land. On the day of incident at 6.30 in the morning, the turn of water was of the complainant party and complainant and his brothers went to tube well for diverting the water and after diverting water to the land, complainant and his brother were going via side of Imam channel. Complainant’s brother Khair Muhammad was leading and complainant was behind him. When at 6-45 a.m they reached in front of government tube well, suddenly three persons appeared with weapons before complainant party, out of them, two were carrying guns in their hands and one was having repeater in his hand. One person having gun challenged complainant’s brother Khair Muhammad and said that they would not spare him and shall murder him. By saying so, the person carrying gun made direct fire upon complainant’s brother Khair Muhammad with intention to commit his murder, which hit him and he fell down afterwards same person carrying gun took out knife (Kati) from fold of his trouser and cut down the neck of complainant’s brother Khair Muhammad. Complainant alleged in the FIR that he has seen the three accused persons properly and shall identify them if seen again. Complainant raised cries of murder-murder and on his cries and fire arm report complainant’s cousin Saith Ali s/o Khair Muhammad Memon and relative Din Muhammad s/o Noor Muhammad Memon came running who were coming from Sobhodero and all the three accused seeing the p.ws fled away alongwith their weapons and knife towards Bhonbhatpur. The complainant and p.ws then saw that complainant’s brother Khair Muhammad had a fire on the stomach and his neck was cut and was dead. Thereafter, complainant leaving the p.ws over the dead body came to P.S and lodged the FIR alleging that he has doubt that due to above annoyance accused Bashir Ahmed s/o Gahi Khan Samtio alongwith two unidentified accused in collusion with the each other has murdered the complainant’s brother Khair Muhammad by making direct fire of gun on his stomatch and cutting down his neck with knife.

Heard the learned counsel for the applicants as well as learned State counsel.

The case of prosecution is of three versions of prosecution complainant did not mention the names of the applicants in FIR but latter on mentioned in first supplementary statement on 143.2009 after 15 days of FIR and second further statement of complainant was recorded on 7.4.2009 after more than one month and no source of identification has been disclosed either by I.O or by complainant as to how he came to know about the names of the present applicants as the FIR is silent. In the FIR names of the applicants are not mentioned and even in further statement the complainant did not disclose the name of p.ws/eye witnesses who have seen the accused while committing the offence. The contents of FIR and two subsequent statements recorded by police are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-turn from his previous stand. This fact makes it a case of further enquiry falls within the ambit of Section 497 (2) Cr.P.C. The cases reported in PLD 2008 SC 1113, 2008 P.Cr.L.J 135 and 2009 SD 79. In the case reported in 2008 P.Cr..L.J 135, it has been held that initially accused was not named in the FIR, but had been implicated in the case twelve days after the occurrence by the real sister of the deceased on the information of a person who too had been arraigned as an accused in the case. Fatal shot had been attributed to accused, but it was yet to be seen as to what extent statement of a co-accused could be used against the accused. Culpability and complicity of accused would be determined at the trial and till then he could not be retained in custody as a measure of punishment. In the case reported in 2009 SD 79 it has been held that accused in a double murder case under Section 302, PPC would have a case of further enquiry within the ambit of section 497(2) Cr.P.C against him when they were not nominated in the FIR and no specific role was assigned to them but they were implicated after one month eight days of murder occurrence without any reason as to why complainant had remained mum for one month and eight days.

The present case is of three versions, no eye witness has been given by the complainant in his further statement. Applicants were not put to identification parade. The complainant was not known previously to the applicants.

For the foregoing reasons I admit the applicants to bail subject to their furnishing solvent surety in the sum of Rs.4 Lac each and P.R bond in the like amount to the satisfaction of trial court.

However, the observations made herein above are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial court which is free to appraise the evidence strictly according to merits of the case.

JUDGE.

M.F.