' ABDUR REHMAN FARUQ PIRZADA, J.---This bail application has been filed on behalf of applicants Abbas and Nawaz in the case vide Crime No. 37 of 2005, Police Station Abad, District Jacobabad, for offences under sections 460 and 337-H(2), P.P. C .
2. The F.I.R. Was lodged by complainant Gulzar Ahmed at Police Station Abad, District Jacobabad on 12-10-2005, at 3-30 p.m. As briefly stated, the allegations in the F.I.R. Are that the complainant party owned buffaloes, which were tethered in the courtyard of their house, which was surrounded by a compound wall. On the night of incident at about 3-00 a.m., five accused persons entered in the house of complainant party, who were seen in the light of electric bulb. One accused person was armed with kalashnikov, two persons were armed with guns, and one person was armed with lathi. The accused person with lathi was untying one buffalo from the wooden kila. The complainant party raised cries of thief-thief, on which the person armed with kalashnikov fired a burst upon complainant's cousin Manzoor Ahmed, who, sustained injuries and fell down on the ground. On the cries and fire-arm reports the villagers came running on seeing whom accused persons left the buffalo and ran away towards western side while firing in the air. The complainant's cousin Bashir Ahmed and maternal uncle Gul Hassan along with other villagers went behind the accused persons while tracking their foot prints. Complainant's cousin Manzoor Ahmed expired within the sight of complainant party having sustained injuries. Lateron, the dead-body was brought to police station and F,I.R. Was registered. The persons going in pursuit of accused,, later informed that the foot prints of five persons were lost at some distance. It was 'stated in the F.I.R.
That accused persons.Were with open faces and would be identified if see again.
3. Accused Nawaz, Abbas and Bhashan were arrested on 21-10-2005. They were put to identification test before II Civil Judge and Judicial Magistrate, Jacobabad, where the applicants Nawaz and Abbas were picked up by complainant Gulzar Ahmed and P.W. Shabir Ahmed to be the accused.
4. Learned counsel for applicants has submitted that the names of the applicants do not transpire in the F.I.R. According to the statement .Undef section 164, Cr.P.C. Of P.W. Shabir Ahmed, the burst of kalashnikov was fired by co-accused Bhashan upon deceased Manzoor Ahmed, whereas applicants were armed with guns. He has contended that the applicants' cannot be held as liable for murder of Manzoor Ahmed, and at the most they can be said to have fired in air. Learned counsel for applicants has placed reliance upon rulings of law reported in 2007 M LD 526, 2007 YLR 131,5, 1999 PCr.LJ 890, 2001 PCr.LJ 80 and 1998 SCM R 454.
5. Learned State counsel has opposed the grant of bail, on the ground that the accused persons had entered within the premisess of the house of complainant party, as such section 460, P.P.C.
Would be applicable in the case, and the applicants would be equally liable for the commission of murder of deceased Manzoor Ahmed...He has also stated that the applicants had attempted to commit thefi/dacoity, and on the cries and challenges made by the complainant party,' they resisted and fired upon deceased, thereby murdering him.
6. I have carefully considered the arguments of both learned counsel and 'have perused the record. The applicants along with co- accused persons, allegedly committed the lurking house trespass by entering within the premises of house of complainant party at night time, and attempted to take away the buffalo of complainant party. When the complainant party raised cries and made challenges, one of the accused persons fired burst with kalashnikov upon Manzoor Ahmed, thereby murdering him. On seeing the village people coming while making challenges, on the cries of complainant party and fire-arm reports, the accused persons left the buffalo and ran away while firing in the air. The applicants, whose names do not transpire in the F.I.R., were arrested and thereafter put to identification test before the learned Magistrate on 24-10-2005, in which complainant Gulzar Ahmed and P.W. Shabir Ahmed identified the applicants to be the culprits. The statement under section 164, Cr.P.C. Of P.W. Shabir Ahmed was also recorded on 24-10-2005, in presence of the applicants/accused, wherein he implicated the applicants while stating that they were the accused persons armed with guns who had committed the alleged offence. The postmortem report corroborates the ocular version, in that the deceased suffered total four injuries caused by fire-arms, including two entry wounds and two exist wounds.
7. In view of the above facts and circumstances, at present stage prima facie there is sufficient material to connect the applicants with the alleged offence. The fact that their names were not mentioned in the F.I.R., would clearly show that the complainant party had no previous enmity or motive to falsely implicate them in the case. However, later in the identification test, they fairly identified and nominated accused persons. The rulings of law cited by the learned counsel for applicants, in my humble view, would not be applicable to the facts and circumstances of present case, as the same rulings of law are with regard to the cases involving murder simpliciter under section 302 read with section 324, P.P.C. Etc. But in the present case since the offence was committed within the premises of house of the complainant party, as such section 460, P.P.C. Will apply. For the sake of convenience section 460, P.P.C. Is reproduced:-- "Persons jointly concerned in lurking house-trespass or house-braking by night punishable for qatl or hurt caused by one of them. If at the time of the committing of lurking house-trespass by night or house-braking by night, any person guilty of such offence shall voluntarily cause of attempt to commit qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house-trespass by night or housebreaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code."
8. Moreover the alleged offence of murder is coupled with the offence of attempt to commit dacoity, and prima facie sections 398 and 399, P.P.C. May as well be applicable.
9. In view of the foregoing facts and circumstances, I do not find any merits in the bail application at present stage, and the same is dismissed. However, the applicant will be at liberty to move fresh bail application before learned trial Court, after some evidence is recorded, if so advised.