2010 PLP 756 (YLR)

GHULAM SARWAR KORAI, J.--On 11-5-2008 at about 12-30 p.m. the F.I.R. was registered by Shahbaz about the incident, which allegedly taken place on same, day at about 11-00 a. m. In his F.I.R. he stated that he along with his nephew Muneer Ahmed aged about 35/36 years, his son Imtiaz Hussain and Zahoor Illahi went to Water-course No.6-L and were present there, Muneer Ahmed asked the complainant that he is going on the motorcycle towards town and he proceeded on the motorcycle, at the same time Anwar son of Eido with country made pistol, his brother Hasil with DBBL Gun, Jabbar with pistol and Ali Hassan with hatchet appeared. Accused Ali Hassan allegedly instigated to other accused not to spare Muneer Ahmed as they were on enemical terms with the complainant party, therefore, accused Jabbar made fire from the pistol to Muneer with intention to kill him but the same was not hit to him while applicant/accused Hasil made fire from his DBBL Gun with intention to kill the same was hit to Muneer who fell down. Accused Anwar made fire from his country made pistol with intention to kill upon the complainant party but they saved themselves by falling down and all accused made their escape making aerial firing and abusing to complainant party. Complainant and witnesses saw Muneer Ahmed who received fire injury on neck, backside his head and on his back and blood was oozing. He was brought at Hospital where he was died. Leaving the dead body in the Hospital complainant came at police station and lodged report of the incident. All accused nominated in the F.I.R. were arrested on 30.5-2008. While .12-bore pistol was allegedly recovered from accused Ali Hassan and so also one empty cartridge and two live cartridges but nothing was recovered from place of incident. Confessional statement of co-accused Ali Hassan and Jabbar was recorded on 5-6-2008 while statement under section 164 Cr.P.C. of P.W. Muhammad Saleem, Amir Hassan and Wahid Bakhsh was recorded on 7-6-2008 in which they stated that on the day of alleged incident the present applicants were all along with them in the Sugar Mill from early hours of the day upto 12-30 p.m. Final report was filed by the police on 7-6-2008 showing Ali Hassan and Jabbar in custody where the names of the applicant have not been mentioned even as arrested or accused in Column No.II or absconder in the challan. The case was entrusted to the (Court of learned 1st Additional Sessions Judge, Badin and same was numbered as S.C. No.142/2008 State v. Ali Hassan, and others. On 30-8-2008 one application under section 193 Cr.P.C. was moved by the complainant for joining of the applicants as accused and the same was allowed vide order dated 11-4-2009 and the present applications were remanded to custody. The bail application on behalf of present applicants was moved on 20-4-2009 but the same was dismissed by the learned trial Court vide order dated 2-5-2009, and this bail order is impugned before this Court. Syed Madad Ali Shah, learned counsel for applicants argued that during investigation, statements of three defence witnesses under section 164, Cr.P.C. were recorded and according to their statements the present applicants were present with them in the Sugar Mill on the day of alleged incident up to 12-30 p.m. He further argued that alleged DBBL Gun was recovered from co-accused Ali Hassan and Jabbar and they allegedly confessed their guilt, therefore, their confessional statement was recorded on 5-6-2008 but since they were declared as innocent, therefore, they were released by police and this is the reason that their names have not been reported in the final report which was filed on 7-6-2008, by this way the case of applicants comes within the ambit of further inquiry. Learned counsel for applicants relied upon case of Muhammad Azam v. The State 2008 SCMR 249, Saleh alias Muhammad Saleh v. The State 2008 PCr.LJ 113, Muhammad Maroof v. The State 2009 YLR 1952, Shahid and another v. The State 2009 YLR 56 and Amir v. The State PLD 1972 SC

277. He prayed for grant of bail. Mr. Shaikh, learned A.P.G. Sindh appearing on behalf of the State opposed the bail application, on the ground that this is day incident which was taken place at about 11-00 a.m. and F.I.R. of the same was registered within one and half an hour at about 12-30 p.m. He further argued that version of the complainant has been supported with the statements of prosecution witnesses who were present on spot at the time of alleged incident. He further argued that the version of the complainant also supported by the medical certificate, therefore, he prays for rejection of bail. I have given due consideration to the arguments of learned counsel for the applicant as well as learned counsel for the State. I have due respect to the case law which has been quoted by learned counsel) for the applicants but since there is direct role against the applicant No.1 Hasil who allegedly made straight fire from DBBL Gun towards deceased Muneer Ahmed who was young man aged about 35/36 years while there is no role against the co-accused Anwar as he allegedly made aerial firing. Both the applicants were remanded to Jail custody on 11-4-2009, so far submission of learned counsel for the applicants is concerned those need deeper appreciation and it is settled principle of law that the bail application would be decided with tentative assessments of the material available on record, therefore, I allow the bail application of applicant No.2 Anwar. He may be released on bail subject to furnishing solvent surety in the sum of Rs.200,000 and PR bond in the like amount, to the satisfaction of trial Court, while bail application of applicant No.1 Hasil is hereby dismissed, however, he is at liberty to repeat his bail application after recording of some evidence of the material witnesses. Learned trial Court is directed to record the evidence of material witnesses as soon as possible preferably within three months. The bail application stands disposed of accordingly. H.B.T./H-47/K Order accordingly.