1. ' MUHAMMAD ATHAR SAEED, J.---This bail application under section 497 read with section 561-A Cr.P.C. Has been filed in respect of F.I.R No,12 of 2006 registered in P.S. Daro, District Thatta on 20th March, 2006 at 1400 hours. Earlier the applicants had filed a bail application before the Hnd Additional. District Judge, Thatta who vide his order dated 1-5-2006 in Sessions Case No,35 of 2006 rejected the bail application. Hence this bail application.
2. ' I have heard Mr. Muhammad Asif Malik the learned counsel for the applicants and Mr. S. Asad Ali Shah learned counsel for the complainant and Mr. Ayaz Ahmed Khan learned state counsel.
3. ' Brief facts of the case as narrated in the F.I.R are that the complainant Allah Bux Son of Nawaz Ali had reported in the F.I.R that a dispute was going on between them and Dars community members in respect of water course and on 20th March; 2006 around 8-30 a.m. When his uncle was going along the railway track a person namely Qurban son of Khairo Dars exchanged hot words with him and warned him not to -come through their land and after exchange of harsh words between them the said person issued threats that they shall not spare him. Thereon the complainant along with his eight other relatives was going to the police station Daro for lodging F.I.R. When these persons reached post office Daro at about 1-00 past morning they were encircled along with six other co-accused. Out of these five applicants, except Shah Nawaz, who is applicant No,3 holding a Lathee, all the other applicants were armed with hatches whereas the other co-accused were armed with hatches, rifles and shotguns. According to the complainant the accused fired with rifles whereas one co-accused Younus gave straight hatchet blows to the deceased Husasain Bux Jakhro and Ali Nawaz another co-accused gave straight hatchet blows to Nabi Bux alias Nabo and other accused person including the applicants gave lathee and hatchet blows to the other relatives of the complainant and it was asserted that they caused injuries. Hussain Bux died on the spot whereas Nabi Bux died at the hospital. Younus was inducted as the main accused as according to the F.I.R it was his hatchet blows which had resulted in death of Hussain Bux Jakhro, but he was let out by the police by showing his name in column No,2 of the F.I.R and the complainant has filed an application under section 193 Cr.P.C. Against such letting out by the police.
4. ' The learned counsel for the applicant argued that there are general allegations of causing injuries from the hatchet blows to the relatives of the complainant, but there is no allegation that any of the applicants had caused hatched or lathee blows on the deceased personally or assisted in any manner in facilitating the murder of the deceased persons. He submitted that the offence was committed-on 20th March, 2006 and the accused persons were arrested on 24-3-2006. The statement under section 164, Cr.P.C. Of the witnesses was recorded on 28th Marchand the alleged recovery of the hatchets and lathees took place on 6-4-2006. He further submitted that two co- accused Leemon Son of Achar and Hameer son of Achar were granted bail by the IInd Additional Sessions Judge, Thatta vide his judgment dated 19th June 2006 and therefore, since the charges against the applicants are the same as the charges against the two accused, the learned Additional District Judge should have followed the rule of consistency and allowed the bail to the applicants. He further submitted thai this bail order was produced before the leaned Additional Sessions Judge and although he discussed the same in the impugned order but without giving any reasons for not following the rule of consistency or why the case of Leemon and Hameer is not applicable to the applicants, rejected the bail application filed by the applicants. The learned counsel also argued that the evidence of the witnesses should have been recorded on the same date and the delayed recording of such evidence is an incurable defect. He further submitted that the applicant No,3 Ghulam Dastaghir son of Leemon Dars was in the Hospital at about 10-00 a.m.
5. On 20-3-2006 and submitted a medical certificate in support of his above contention. The learned counsel further submitted that an enquiry is needed to connect the applicants with the offences under sections 302, 324 and 337-A-ii 337F-ii Cr.P.C. Which fall within the prohibitory clause and final conclusion can not be reached at his stage. He further submitted that the case falls within the prohibitory clause of section 497 Cr.P.C. In support of his contentions the learned counsel relied on the following case laws:-
(1) Farzand Ali v. Taj and 2 others (2000 SCM R 1854)
(2) Attullah and 3 others v. The State and another (1999 SCM R 1320)
(3) Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125)
(4) Muhammad Sadiq and another v. The State (1996 SCM R 1654)
(5) Suba Khan v.. Muhammad Ajmal and 2 others (2006 SCM R 66) and
(6) Irshad v. The State (2004 PCr.LJ 1246).
6. ' The learned counsel for the applicant Syed Asad Ali Shah argued that the murder has been committed and threats have been received by the complaint and his relative from the accused persons that if they der not compromise they will not be spared. He however could not point out as to any role the applicants had played in the murder of the deceased except submitting that there was a common intention and vicarious liability and, therefore, the applicants were not entitled to bail.
7. ' The learned state counsel pointed out that the hatchets recovered from Mr. Ghulam Dastaghir, Saleem and Ali Bux were not blood stained, however, lathee recovered from Shah Nawaz and the hatchets recovered from Abbas were bloodstained but so far the chemical report has not been received.
8. ' I have examined the application in the light of the contents of the F.I.R; the arguments advanced by the learned counsel and have perused the records of the case and the judgments on by the leaned counsel.
9. ' It, is now a settled law as established by the judgments of the Honourable Apex Court that where no allegation has been made of inflicting gunshots or hatchets or lathee blows on the deceased or facilitating his murder, bail may be granted in case of ineffective firing or ineffective blows. In the case of the applicants although there are general allegations of causing injuries to the relatives of the complaint and the deceased through causing them blows by hatchets and lathees but, in my opinion, a further enquiry is required to establish this allegation as no allegation of any specific injury caused to the complainant and his relatives has been made. Even otherwise it needs to be .
10. Established through proper A enquiry that the injuries are of such nature, which may bring the case within the exceptions to section 497 Cr.P.C. I am also of the opinion that the learned Additional District Judge has not given any cogent reason for not following the rule of consistency and not following the order passed by his predecessor although the charges against those co-accused and the present applicants are almost identical. I am also of the opinion that an enquiry is needed to prove the common intention. I am, therefore, of the considered opinion that the applicants are entitled to grant of bail. I, therefore, admit the applicants to bail subject to furnishing solvent surety of Rs,2,00,000 each and a personal bond in the like amount by all the applicants to the satisfaction of the trial Court.
11. ' The applicants are directed to cooperate with the investigation authorities and attend the hearing of the case failing which the concession of bail application may be withdrawn.
12. ' This bail application is disposed of in the above manner.