2010 P Cr (PLP)

KHADAM HUSSAIN M. SHAIKH, J.

Through this application applicant Papoo alias Azhar seeks post-arrest bail in Crime No. 39 of 2007 of Police Station Baqapur for an offence under sections 302, 148, 149, 337-11(2), P.P.C. The prosecution story, as narrated in the F.I.R., is that on the fateful day i.e. on 28-9-2007 complainant Mst. Khairan along with her two sons namely Rashid Ali and Rasheed Ahmed and her cousin Punhal, who all had come to Larkana city for their personal work, after finishing their work, were returning to their village on a donkey cart and at about 11-30 a.m. when they reached Village Sobedar Lohar near Village Murad Shah on the road leading towards village Mashori six persons namely Yar Muhammad alias Kato

2. Iqbal both sons of Haji Khan

3. Ghulam Nabi son of Muhammad Achar

4. Papoo son of Ghulam Nabi (the present applicant)

5. Haneef son of Ghulam Nabi all by caste Lashari and unidentified parsons with unmuffled faces, who were not previously known to them, emerging from the bushes came on the road in front of them. Out of whom accused Yar Muhammad alias Kato and Iqbal were armed with repeaters, Ghulam Nabi was armed with shotgun, Papoo and Haneef were armed with pistols and unidentified persons were having shotguns. It is the case of the prosecution that accused Yar Mohammad alias Kato by directing his weapon towards the complainant party asked them that today they will not spare them, and accused Yar Muhammad got the complainant's son Rashid Ali down from donkey cart. It is stated that accused Yar Muhammad alias Kato, Iqbal and Ghulam Nabi made fires straight at Rashid Ali with intention to murder him, who fell down raising cry. It is further the case of the prosecution that all the other accused made aerial fires with their weapons. The complainant party raised cries and then all the accused went away towards western side and then they went and saw that Rashid Ali was having firearm injuries on the left side of his head and chest and he died within their sight. It is stated that there is dispute between the complainant party and accused over a wall of the house since last 15/17 years. The complainant took dead body to Civil Hospital Larkana and leaving witnesses to guard the dead body there, she went to police Station Baqapur and lodged the above F.I.R. After investigation the police sent up the applicant Papoo whereas name of co-accused Ghulam Nabi was placed in column No.2 of the challan. Learned Trial Court rejected the Bail Application filed on behalf of applicant Papoo vide order dated 29-8-2008. Hence the present bail application. Heard learned counsel for the applicant and Mr. Muhammad Akram Shaikh, learned State Counsel. Learned counsel for the applicant has contended that no overt act has been assigned to the applicant Papoo and there is general allegation of firing in the air against applicant Papoo and others, that the applicant dad not caused any injury to deceased Rashid Ali, or to any of the P.Ws. that no recovery of pistol has been made from the applicant and no empty of pistol was secured from the place of incident, that the applicant has been implicated in this case falsely due to enmity, which is admitted in the F.I.R. and that co-accused Ghulam Nabi, who was attributed role of causing firearm injury to deceased Rashid Ali, has been let off by the police and his name has been placed in column No.2 of the challan and as such the case of the applicant requires further inquiry. Learned counsel for the applicant also argued that the applicant was arrested on 18-10-2007 and since then he is in custody. He relied upon the case-law reported as Yaroo v. The State 2004 SCMR

864. Mr. Muhammad Akram Shaikh, learned State Counsel has candidly conceded to the arguments advanced by the learned Advocate for the applicant and raised no objection to the grant of bail to the applicant. I have carefully considered the arguments and have gone through the material placed before the Court. I find that in the F.I.R. No allegation has been levelled against applicant Papoo of causing any injury to deceased Rashid Ali or to any of the P.Ws. There is general allegation of making firing in the air against the applicant Papoo co-accused Haneef and unidentified accused and no recovery of 'pistol has been effected from the applicant and even no empty of pistol was secured from the place of incident. Honourable apex Court in the case of Faraz Akram v. The State 1990 SCMR 1360 granted bail to the accused. The allegations against the said accused was that he had made ineffective firing which stood disproved because no empty was secured from the spot., Further more undoubtedly the applicant has remained in custody for last more than 17 months. Under the above circumstances, I am of the considered view that applicant Papoo is entitled for the concession of bail, therefore, bail is granted to applicant Papoo in the sum of Rs. 200,000 subject to the furnishing solvent surety and P.R. bond in the like amount to the satisfaction of the learned trial Court. The instant Bail application is allowed. The listed criminal miscellaneous application also stands disposed of. H.B.T./P-17/K Bail granted.