2011 PLP 2292 (YLR)

GHULAM SARWAR KORAI, J.

Through this application, applicant seeks his release on bail. Facts of the case are that on 2-8-2008 at about 1530 hours Fida Hussain lodged the F.I.R. stating therein that about one year back he was declared as "KARO" by Khawand Bux Bhangwar and they were annoyed. On the same day while he along with his uncle Imam Bux aged about 30 years, relative Raza Hussain aged about 22 years and his father Shah Bux were sitting over the roof of the Primary School. At about 4-00 a.m. his father Shah Bux went to perform TEHJID prayers in the Mosque. After about 15 minutes the complainant saw and identified Khawand Bux Bhangwar armed with Double Barrel Gun, Wazir Bhangwar, Zulfiqar Bhangwar, Muhammad Khan Bhangwar, Mir Bhangwar and two unknown persons, all duly armed with guns, came over the roof of the school. Accused Khawand Bux fired from his gun upon Raza Hussain, Wazeer Bhangwar, Zulfiqar Bhangwar fired from their guns upon Imam Bux and Muhammad Khan and others fired from their guns upon complainant and then made their escape by taking the licensed repeater of the father of the complainant Shah Bux. The fire shots attracted to Shah Bux, father of the complainant, and Karim Bux, who also came there. The complainant party saw that Raza Hussain and Imam Bux were injured and died on the spot while complainant received injuries on His body, he was shifted to Civil Hospital Nawabshah for treatment and medical certificate then he lodged the F.I.R. After registration of F.I.R. and during investigation name of the applicant was allegedly disclosed by Prosecution Witnesses Karim Bux and Shah Bux in their statements under section 164, Cr.P.C. before the Court of learned Civil Judge and Judicial Magistrate-3 Nawabshah and then challan was filed on 1-9-2009 placing the name of the Applicant and three others as absconders. Later on the applicant was arrested. Bail application filed by the applicant was dismissed by the Court of learned Sessions Judge Shaheed Benazirabad vide order dated 12-2-2011 and that order is impugned in the present bail application. Heard Miss Shabana Kausar Jatoi learned counsel for the applicant, Syed Meeral Shah, Deputy Prosecutor-General Sindh for the State and Mr. Nisar Ahmed Umar, learned counsel for the complainant. Learned counsel for the applicant contended that the accused party were well known to the complainant party. The F.I.R. was registered at 15-30 hours on the same day by Fida Hussain and the accused were named with their parentage and role including one brother of the applicant namely Zulfiqar but name of the applicant was not given by him in the F.I.R. She further submits that 161, Cr.P.C. statements of the witnesses namely Karim Bux and Shah Bux were managed while their statements under section 164, Cr.P.C. before the learned Magistrate were recorded on 27-8-2009 without any proper explanation of the delay. She further submits that actually the applicant has committed no offence whatsoever alleged by the prosecution but his name was given by two witnesses in their statements in order to implicate all family members of the applicant. She lastly submits that the applicant was unaware about his involvement in the case therefore challan was filed against him by placing his name along with others as absconders. She prayed the release of the applicant on bail. Learned counsel for the complainant opposed the bail application on the ground that two innocent persons lost their lives while complainant himself became injured and the applicant was named by the witnesses, who were present at the time of alleged incident, in their statements under section 164, Cr.P.C. therefore, he is not entitled to be released on bail. His arguments were adopted by learned Deputy Prosecutor-General Sindh. I have perused the file. Though the F.I.R. was registered with the delay of about 11 hours but even the name of the applicant was not given when he was also well-known to the complainant party and his brother Zulfiqar was named in the F.I.R. The name of the applicant was allegedly disclosed by the witnesses on 27-8-2009 after about 25 days of the incident without any proper explanation therefore, I am of the view that the case against him is of further inquiry. Challan was filed placing the name of the applicant along with others as absconder and he was unaware about his involvement in the case. All witnesses are family member of the complainant and there is no apprehension of tampering of their evidence. Under these circumstances, bail application of the applicant was allowed vide short order dated 8-6-2011 and these are the reasons of the same. H.B.T/A-83/K???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.