2009 PLP 62 (YLR)

FARRUKH ZIA G. SHAIKH, J.

Applicant Rab Nawaz Bhayo has filed this Application under section 497, Cr.P.C. seeking bail, who is wanted in F.I.R. Crime No.104 of 2008 registered at Police Station, Mirpur Mathelo for an offence under sections 457, 380, 324 & 353, P.P.C. Succinctly, the prosecution story is that the case was initiated on an F.I.R. lodged by Manik Bhayo on 2-6-2008 stating therein that he owns cattle, which he usually used to tether in his house. On the night of incident at 9-00 p.m. when he woke-up on the barking of dogs, found his three buffaloes missing from his house. He raised cries on that P.Ws. Haji Badal and Shabir Ahmed came there. Then Complainant party and police followed the culprits and on the light of bulb saw them to be Rab Nawaz (Applicant) and other co-accused Dilmurad, Badihal, Lal alias Lal Bux along with two unidentified persons armed with guns going with buffaloes. It is alleged that the accused not only deterred the police from discharging their lawful duty but made encounter, thereafter leaving the buffaloes all the accused succeeded in running away, except Rab Nawaz (Applicant), who was apprehended along with his gun. Hence the F.I.R. was lodged. Mr. Ghous Bux Kaheri, learned Counsel appearing on behalf of the applicant contended that applicant is respectable and innocent person, has been entangled in this case due to enmity and all the witnesses are interested though alleged firing continued for about 20 minutes but no body received any injury nor any empty was recovered from the place of incident, therefore, false implication of the applicant can not be ruled out. He submitted that section 353 with which, the applicant is charged is bailable, while section 324, P.P.C. is outcome of an ineffective firing. He argued that co-accused Dil Murad and others have already been granted pre-arrest bail on same allegation, therefore, keeping in view the rule of consistency, the present applicant is also entitled for bail. In support of above contentions, he relied upon Khtoor v. The State 2005 PCr.LJ 626, Shahid Mahmood alias Shahid Imran v. The State 2000 MLD 117, Amanullah v. The State 2005 MLD

415. In the last he stated that the time of incident as mentioned in the F.I.R. is 9 pm, which is not time for sleeping and requested that the applicant may be released on bail. On the other hand Mr. Agha Ather Hussain, Assistant Advocate General Sindh appearing on behalf of the State, opposed to the grant of bail. While defending the State, he submitted that applicant is named in the F.I.R., and was apprehended at the spot and the P.Ws have fully implicated the applicant in their statements, therefore, the applicant does not deserve for any leniency and his Application may be rejected. Heard the arguments of Mr. Ghous Bux Kaheri, learned Counsel appearing on behalf of the applicant and Mr. Agha Ather Hussain, Assistant Advocate General appearing on behalf of the State and with their assistance, I perused the material available on record very carefully. No doubt the present applicant has been apprehended at the spot but on the same allegation, co-accused Dil Murad and others have been granted bail before arrest by the trial Court. Therefore, keeping in view the rule of consistency and the law referred to above, which fully supports the case of the present applicant, I accept this Application and admit him on bail subject to furnishing surety in the sum of Rs.100,000 and P.R. Bond in the like amount to the satisfaction of the learned trial court. Application stands disposed of in the above terms. H.B.T./R-40/K Bail granted.