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Criminal Bail Application No. 436 of 1986, decided on 20th April, 1986.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), S147/148/302/149‑‑Pre‑arrest bail, grant of‑‑Accused respectable persons‑‑F.I.R. giving six persons as dacoits‑‑Accused not named therein‑‑Statements of eye‑witnesses recorded after six days‑‑Accused not implicated in such statements‑ Witnesses of motive also not implicating two out of three accused‑‑Accused persons well known and residents of same town‑‑One accused not shown as accused in interim challan‑‑Arrest apprehended at final challan‑ Anticipatory bail was confirmed in circumstances.

Jamaluddin v. The State 1985 S C M R 1949 ref.

A. Mujeeb Pirzada for Applicants.

A.A. Muhammadally, Asstt. A.‑G. for the State.

Three applicants named above, who are present in the Court have applied for bail before arrest and they are accused in the case under sections 302,149,148 and 147, P.P.C. Ad interim bail was granted to them, vide order, dated 31‑3‑1986 and today the Investigating Officer is present in the Court in pursuance of such direction given by the Court earlier. I.O. present states that applicants on interim bail have joined the investigation.

Incident took place on 8‑3‑1986 at about 6‑00 p.m. F.I.R. is lodged by Yar Muhammad who is nephew of deceased Khan Muhammad. According to F.I.R. Complainant saw six persons armed with rifles except one who was armed with Klashankov, who came to the tailoring shop of Dost Muhammad Kalhoro. On seeing them Khan Muhammad ran away to his house, out of them three dacoits including one with Klashankov followed Khan Muhammad to his house and the three remaining dacoits kept standing in front of the shop of Dost Muhammad Kalhoro. Reports of the fire‑arms shots were heard from inside the house. After a short while those three dacoits brought with them Habibullah son of Faiz Muhammad and Nazir Muhammad son of Khan Muhammad and made them sit in the shop of Dost Muhammad Kalhoro. The man who was armed with Klashankov opened a burst of fire at Nazir Muhammad and Habibullah, who became injured. On the reports of fire‑arms and cries‑came to the spot witnesses namely Sharif Khan, Fateh Muhammad and Sardar Muhammad and others who saw accused persons whose faces were not muffled. The man who was armed with Klashankov was declaring himself as Ismail Junejo. They all fired shots and ran away. After the departure of culprits witnesses went near and found that Nazir Muhammad had expired. Then they went to the house of Khan Muhammad and found dead bodies of Khan Muhammad, Hayat Bibi and Sahib Khan, all of them had died of bullet injuries. Complainant then left the other witnesses near the dead bodies and injured Habibullah and himself repaired to the Police Station where he filed F.I.R.

Motive stated in F.I.R. is that about a 1 years age deceased Khan Muhammad was abducted from town Sagyoon by dacoits and after four days on getting an opportunity Khan Muhammad escaped from their custody and the dacoits had come on the day of incident for him.

Bail plea is urged on many grounds. Firstly that all the three applicants are respectable persons and applicant Fakir Naimat Ali is member of District Council, Khairpur while applicant Fakir Ulfat Ali is Ex‑Chairman of Union Council Sagyoon and also is a practising Advocate and Member of Bar of Khairpur. Applicant Muhammad Sachal is vice‑Chairman of Union Council Sagyoon. Secondly, it is submitted on their behalf that had they been accused persons, their names would have been mentioned in F.I.R. by the Complainant for the reasons that they as well as complainant reside in the same town Sagyoon and are known to each other. It would be pertinent to point out here that as per version of F.I.R. six accused persons have been described as dacoits and it is averred that they were not known to the complainant and one of them gave out his name as Ismail Junejo. In this context it is submitted by Mr. Pirzada that Police of the area in order to cover and hide their inefficiency or inability to arrest the real culprits, arrested the present three applicants and kept them in custody from 9‑3‑1986. In consequence of which there was hue and cry in the town and residents of the area took procession by way of protest against the arrest of the applicants, which fact is evident from the Press cuttings which have been appended with this application for bail. It is further submitted that subsequently Police released the present three applicants from custody on 14‑3‑1986 but the applicants still apprehended that they would be arrested and they would be involved in this case and that is why they have applied to this Court for anticipatory bail.

According to the case of the prosecution now, It appears that statements under section 161, Cr.P.C. of the eye‑witnesses have been recorded on 15‑3‑1986 after a delay of six days. Mr. Pirzada states that when incident took place on 8‑3‑1986 and F.I.R. was lodged promptly on the same day then police statements of the eye‑witnesses could have been recorded on the same day but it was not done and the delayed recording of Police statements after six days shows that story of the prosecution case has been manipulated and the witnesses had been pressurised to say what they were not prepared to say earlier in point of time.

According to the prosecution case apart from complainant Yar Muhammad there is one other person who claims to be the eye‑witness and his name is Dost Muhammad Kalhoro in whose tailoring shop it is alleged that part of the incident took place and in the result of firing done there by culprits, two persons were injured out of whom Nazir Muhammad died at the spot and Habibullah became injured and also died subsequently. According to F. I. R. three other persons who are specifically named in F.I.R. as Sharif Khan, Fateh Muhammad and Sardar Khan came to the spot on the, reports of fire‑arms and cries at the time when part of the incident stated above took place in the shop of Dost Muhammad Kalhoro. According to F.I.R. it is stated therein that culprits were not known to them and their faces were unmuffled as such they could be identified by the eye‑witnesses subsequently if such opportunity was afforded to them.

Papers relating to the investigation show that from eye‑witnesses named specifically in F.I.R. Police statement of Dost Muhammad was recorded on 10‑3‑1986 and of the other two eye‑witnesses namely Sharif Khan and Fateh Muhammad were recorded on 15‑3‑1986 and Police statement of fifth eye‑witness namely Sardar Khan is undated. On 15‑3‑1986 statements of two other persons namely Ghulam Haider and Shamsul Haque were recorded as eye‑witnesses to cover them up in the bracket of "other persons" who were attracted to the spot on cries and reports of fire‑arms alongwith three other eye‑witnesses who are named in F.I.R.

Deviating from the contents of F.I.R. three eye‑witnesses namely Sharif Khan, Fateh Muhammad and Sardar Khan have stated in their Police statements recorded after six days that they had seen the killing which took place in the house of Khan Muhammad by the three dacoits, who were not identified and et that time Sachal, Hakim, Gullam, Ghulam Qadir and Shafi Muhammad were standing pointing out the victims to the assailants. Even in these statements the present three applicants are not implicated. The other two eye‑witnesses namely Ghulam Haider and Shamsul Haque have stated in their Police statements that 1 months before the incident they went to the house of Khan Muhammad and were informed that Khan Muhammad had gone to the house of Ulfat Mangi and then they went to the Otak of Ulfat Mangi. In their presence Khan Muhammad requested Ulfat Mangi for payment of Rs.6,000 as tractor money, which claim was admitted by Ulfat Mangi but he pointed out to three persons (dacoits) who were sitting there and further stated that they claimed Rs.5,000 from Khan Muhammad who was their captive and they had spent that amount on his maintenance which had to be paid back. Khan Muhammad did not agree and he was asked to come after one week. Other eye‑witnesses on this point stated that Khan Muhammad had told them about what transpired between him and Fakir Ulfat Ali as stated above. Even in the statements recorded under section 161, Cr.P.C. of these witnesses, the other two applicants Fakir Naimat Ali and Muhammad Sachal are not implicated at all.

I.O. present in the Court when asked why the statements under section 161, Cr.P.C. of the eye‑witnesses were recorded belatedly after a delay of six days, replied that in the beginning these witnesses were scared and were not prepared to come forward to give statements.

Mr. Pirzada has submitted that these applicants are entitled to bail before arrest for the reason that there is no material available with the prosecution, to connect them with the commission of crime. They have been implicated falsely because the police wanted to make a show that the, have been able to arrest some culprits. Reliance is placed on the case of Jamaluddin v. The State 1985 S C M R 1949 in which the relevant case law on the point of pre arrest bail has been noticed and discussed. I.O. present in the Court has stated that interim challan has been presented in which Fakir Naimat Ali applicant No. 1 before me is not shown as accused. Mr. Pirzada has stated that this applicant apprehends that he would be arrested at the time of final challan as such request is made on his behalf that he may not be deprived of relief of bail. Mr. A.A. Muhammadally, A.A.‑G. has stated that in the circumstances stated above, he has no objection to the grant of bail.

For the facts and reasons stated above, interim bail granted earlier is confirmed on the same terms and conditions.

S.A. Bail allowed.

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