1. ' DR. RANA MUHAMMAD SHAMIM, J.--- This bail application is directed against the impugned bail order, dated 28-6-2007, whereby the bail to the applicants was refused.
2. ' The facts briefly stated in the F.I.R. Lodged by complainant Mst. Husna at Police Station Tando Jam stating therein that she has three sons, on which Nayab aged about 20 years is youngest one. On 31-1-2007 she along with her brother Muhammad Bachal and her sons Mukhtiar Ahmed, Musharaf and Nayab were sitting in the house and were chit chatting, then at about 0015 hours accused Roshan Ali alias Noorul Amin called her son Nayab, on which he went out and after him she and her brother Muhammad Bachal and son Mukhtiar Ahmed came out from the house; Qayoob Detho also came out from his house and on the light of bulb they saw accused Riaz having pistol in his hand along with accused Roshan Ali, Abdul Sattar, Shafi Muhammad and Mubeen armed with Lathies were standing, and on their sight accused Roshan Ali and Abdul Sattar caught hold Nayab from his arm and accused Riaz Detho told Nayab that he has a doubt on him for stealing a fan from his Otaq, therefore, he will kill Nayab, which hit him in his chest and he fell down and was bleeding. The complainant party raised cries, on which Riaz with pistol and other accused ran away. Thereafter injured Nayab was taken to Civil Hospital, Hyderabad by Mukhtiar Ahmed, Muhammad Bachal and Qayoom, and at about 5-00 a.m. Morning they brought the dead body of Nayab at the house and told that Nayab had expired on the way. Mukhtiar Ahmed further told that he intimated the police, who came at hospital and after completing paper work and post-mortem, handed over the dead body for funeral purpose, and then the complainant appeared at police station and lodged F.I.R. As stated above.
3. ' After usual investigation, the accused were challaned before the competent Court of law.
4. ' Learned counsel for the applicants contend that no specific role has been attributed to the applicants. They further contend that according to F.I.R., the applicants were armed with Lathies, but they did not use it and no injury was caused to the deceased and the cause of death is of gun fire, which is attributed to co-accused Riaz and all the witnesses are related inter se. Learned counsel further contended that applicants are in jail and case has been challaned and are no more required for the purpose of investigation. Further, they submit that the case of present applicants is identical to that of co-accused Shafi Muhammad and Muhammad Mubeen, who have been granted bail by this Court vide order, dated 8-8-2007 passed in Criminal Bail Application No,S-365 of 2007, therefore, they are also entitled for concession of bail on the rule of consistency. In support of their contentions, they referred the cases reported in 1995 SCM R 310, 1999 SCM R 1320, 1978 SCM R 357 and 2002 SCM R 282 (e) and (g) and 1979 SCM R 9.
5. ' On the other hand, learned State Counsel while conceding to the grant of bail to the applicants submits that the question of section 34 is to be determined by the trial Court after recording evidence of the witnesses.
6. ' Mr. Hidayatullah Abbasi, learned counsel for complainant submits that presence of the applicants at the time of incident, which took place in odd hours of the night had prima facie connected them with the crime. He also submits that the common intention is there to motive pre-planned preparation and concerted effort to such plan. He submits that no specific role was attributed to the applicants, but they reached at the place of incident along with co-accused and helped him to commit such offence, therefore, they are not entitled for concession of bail on the rule of consistency. He has referred to the cases of 1993 PCr.LJ 2135, PLD 1998 SC 84 and 2001 PCr.LJ 649.
7. I have heard the counsel for the parties, perused the material available in case file and gone through the case-laws. Admittedly, no overt act according to F.I.R. Is attributed to the applicants, as they have not caused any injury to the deceased, therefore, false implication of the applicants in this case cannot be ruled out. It is yet to be determined by the trial Court that the offence so committed is an organized and pre-planned manner. It is also an admitted position that co- accused Shafi Muhammad and Muhammad Mubeen have been granted bail by this Court vide order, dated 8-8-2007 in Criminal Bail Application No,S-365 of 2007, therefore, the applicants are entitled for concession of bail on the rule of consistency. The case-laws cited by the learned counsel for the complainant is distinguishable from the facts and circumstances of the present case and the law cited by the learned counsel for the applicants are applicable to the present case.
8. The bail was granted to the applicants in the sum of Rs,2,00,000 (Rupees two lacs) each and P.R.
9. Bond in the like amount, to the satisfaction of learned trial Court by my short order, dated 24-10- 2008 and these are the reasons for the same.