2017 PLP 377 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Mohammad Bux alias Muhammado has impugned order dated 26.06.2014, passed by the Court of IIIrd Additional Sessions Judge, Mirpur Mathelo, whereby his earlier bail application was declined.

2. The relevant facts spelt out from instant FIR are that on the fateful day due to enmity between the parties, accused persons namely Habib Bhutto, Nadir Bhutto and Asghar alias Nandho caused Kalashnikovs fires to deceased Aarbi alias Raho Shar, while accused Haji Bhutto, Mohammad Bux alias Mohammad Bhutto and Agho Bhutto caused Kalashnikov fires to deceased Bakhshal Shar and both succumbed to the injuries at the spot, hence instant FIR.

3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated by the complainant due to their enmity which is admitted in instant FIR; that co-accused Asghar alias Nandho Bhutto has been granted post-arrest bail by the High Court of Sindh vide order dated 02.03.2015 and case of present applicant is also on identical footing as such he is entitled for grant of bail under the rule of consistency; that complainant and witnesses are absconders in crime No.133 of 2008, under section, 302, P.P.C., lodged at P.S. Wastin Jeewan Shah; that there is no reasonable ground to believe that applicant has committed the alleged offence and prosecution story is full of doubts. He relied on the case reported in 2009 SCMR 299.

4. While contradicting to the above submissions, learned APG vehemently contended that name of present applicant is transpired in the FIR and specific role has also been assigned to him, whereby two persons were murdered by accused persons; that deeper appreciation of the material at the bail stage is not permissible.

5. I have heard learned Counsel for applicant as well as learned APG and scanned the material available on record which emanate that name of applicant is mentioned in FIR with specific role of causing Kalashnikov fire shots to the deceased Bakhshal Shar along with his associates and during said incident two persons succumbed to their injuries at the spot. Indeed, the parties are inimical with each other and factum of their animosity is reflected in FIR, however, the enmity is double edged sword as such applicant cannot claim the concession of bail mere on the basis of enmity. It is well settled that while considering the question of bail, deeper appreciation of material available on record is not permissible under the law. The cited case law of Mitho Pitafi v. The State, referred supra, is distinguishable from the circumstances of instant case as in referred case neither any role was attributed to the accused nor his presence was shown at the place of occurrence and his plea of bail was declined by the High Court mere on the ground of his abscondance.

6. Bare perusal of the contents of FIR reflects that applicant committed the alleged offence in prosecution of common object formed an unlawful assembly duly armed with lethal weapons and made direct fires of Kalashnikov upon the deceased Bakhshal. Furthermore, after the commission of alleged offence, applicant disappeared from the scene and was arrested on 11.04.2015 and remained fugitive from law for more than 07 years. The grounds agitated by the learned Counsel are not identical in nature to the case of co-accused who was granted by the High Court of Sindh, thus he could not claim the concession of bail under the rule of consistency.

7. For the facts and circumstances referred supra, applicant has failed to make out a case for grant of bail on the ground of further inquiry as envisaged under section 497, Cr.P.C. Consequently, instant bail application stands disposed of. However, learned trial Court is directed to record statements of complainant and eye witnesses preferably within 3 months, and thereafter applicant may repeat his application for bail afresh on all the available grounds.

8. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. HBT/M-4/Sindh Bail refused.