2006 PLP 813 (SCMR)

HAMID ALI MIRZA, J.

This criminal petition for leave to appeal is directed against an order dated 18-6-2004 in Criminal Bail Application No.298 of 2004 passed by learned Judge in Chambers of the High Court of Sindh, Larkana Circuit, whereby the petitioners were declined bail on the ground that (i) there was confessional statements of the petitioners, wherein the petitioner Abdul Karim has inculpated himself with the commission of crime while so far petitioner Abdul Jabbar his statement is exculpatory not implicating himself in the crime in the said confessional statement, and (ii) on the basis of recovery of fire-arm weapon and the empties secured from the place of occurrence which matched with the fire-arm according to report of the Examiners of the Fire-arms Criminalistic Division Sindh, Karachi, dated 21-5-2004.

2. We have heard learned counsel for the petitioners as well as learned Additional Advocate-General, Sindh on behalf of the State.

3. In the F.I.R. which was got registered on 17-8-2003 at 1720 hours by complainant Hafeezur Rehman who has specifically mentioned the names of (i) Mir Muhammad son of Sahibdina Ogahi, (ii) All Muhammad son of Ghulam Hussain, (iii) Abbas son of Ghulam Hussain, (iv) Allahjurio son of Allah Bakhsh, and (v) Muhammad Moosa son of Pathan Khan, who were stated to have taken out TT pistol from their folds when Mir Muhammad Ogahi came close to Abdul Aziz and with intent to kill him fired from TT pistol on the right side of his waist, while accused Ali Muhammad and Abbas fired from TT which hit him on the right side of neck who fell raising cries on the ground when accused Muhammad Moosa Ogahi aimed his gun at them and fired with intent to kill them, therefore, in order to save themselves they fell on the ground.

4. On perusal of the F.I.R. and 161, Cr.P.C. statement recorded prima facie it mentioned the names of above said persons as accused with the commission of crime specifying the part assigned to each of them while names of the present petitioners are not mentioned either in the F.I.R. or in the 161, Cr.P.C. statements of P.Ws . Besides the alleged confessional statement, so far the petitioner Abdul Jabbar, the same is exculpatory, prima facie it cannot be used as material connecting the petitioner with the commission of crime. Besides the statement in the F.I.R. to that in the confessional statement is prima facie at variance to the fact that T.T. pistol was used in the commission of crime while in the confessional statement Desi pistol is stated to have been used.

5. In view of as said above, in the statements stated in the F.I.R., 161, Cr.P.C. statements of the P.Ws. the alleged confessional statements, we have found that a case for further enquiry for grant of bail in favour of the petitioners is made out, therefore, the impugned order, is set aside and the petition is converted into appeal and allowed and the petitioners are granted bail in the sum of Rs.one lac each with P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./A-23/SC????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.