' SYED SHAFQAT ALI SHAH MASOOMI, J.---This bail application is directed against the order, dated 19-3-2009, passed by the learned Additional Sessions Judge-II, Shikarpur, in criminal bail applications filed in Sessions case No, 228 of 2005, for allegedly having committed offence punishable under section 302, 337-H(ii), 114, 148, 149, P.P.C., being Crime No,6 of 2004, registered with Police Station Jamalpur.
2. The facts of the prosecution case are that on 28-6-2004, complainant Khadim Hussain Unar, appeared at Police Station Jamalpur, and lodged report with the following narration:-- "It is complaint that I and my brothers, namely, Ranjhan and other inmates of the house are residing in one and same house and my maternal uncle Gul Hassan son of Shadi Khan and relative Muhammad Panah son of Malhar both by caste Unar resident of village Mour Khan Unar, taluka Khanpur, District Shikarpur, have come to us for labouring purpose. About 12/13 years ago, there was allegation of "karap" by us against Abdul Karim Unar, as such Abdul Karim Unar had shifted from this village to Larkana; and 4/5 years ago some unknown persons had killed Abdul Karim Unar in Larkana, and for such murder my brother Ranjhan and others were blamed. As such, we had called the parties before Altaf Khan Unar in order to settle the matter with the accused, but they did not accept the proposal and were asking that they will take revenge of Abdul Karim. Today, I, my brother Ranjhan, my maternal uncle Gul Hassan and our relative Muhammad Panah Unar were taking tea together at hotel of Altaf Khan Dahwar, as such at about 3-00 p.m. Accused Nooruddin son of Faiz Muhammad having kalashnikov in his hand, 2, Abdul Rahim son of Shahbazi,
3. Khair Muhammad alias Kaloo son of .Faiz Muhammad Both were having guns in their hands.
4. Rafique Ahmed son of Abdul Karim having T.T. Pistol,
5. Faiz Muhammad son of Faqir Muhammad having hatchet in his hand, all by caste Unar, resident of village Unar, Taluka Garhi Yasin came there; accused Faiz Muhammad while instigating rest of accused asked them not to spare Ranjhan and kill him as he is our enemy, and on instigation of Faiz Muhammad, accused Nooruddin made direct kalashnikov fires upon Ranjhan which hit him and he fell down by raising cry and rest of accused by making aerial firing came out of the hotel and went away of disclosing that they have taken revenge of Abdul Karim. Then accused with their respective weapons fled away. Thereafter, we saw Ranjhan, he was having gutter type injuries on head from right side, and he was bleeding and was lying dead. Then I left Gul Hassan and Muhammad Panah over dead body of my brother Ranjhan, came from there and report the matter that above accused with their common object have committed murder of my brother Ranjhan at instigation of Faiz Muhammad by making kalashnikov fire by accused Nooruddin due to previous murderous enmity. And rest of accused have made aerial firing I am complainant, pray for justice."
3. Earlier, bail plea of the applicants has been declined by learned trial Court i.e, learned Additional Sessions Judge-II, Shikarpur, hence this bail application.
4. Heard learned counsel for the applicant, as well as learned State counsel and perused the material available on record.
5. In fact complainant party has contended in the F.I.R. That there is enmity between the complainant and accused party and due to background of previous enmity false implication of the accused cannot be ruled out. In the present case mostly all members of one and same family have been involved by the complainant. So far as the part assigned to applicant No, 2 Faiz Muhammad is concerned, no overt act of causing injuries to deceased has been attributed against him, but he has been alleged only role of instigation. Admittedly applicant Faiz Muhammad has been shown at the place of occurrence duly armed with hatchet, but it is nowhere mentioned in the F.I.R. That he has caused any hatchet injury either to the deceased to any of complainant or the prosecution witnesses. Furthermore the alleged hatchet has not even been recovered from applicant Faiz Muhammad. So far as allegation of vicarious liability or instigation is concerned, it is yet to be decided after recording of the evidence. In the existing circumstances, the applicant Faiz Muhammad has been able to make out a case of further enquiry.
6. So far as case of applicant Khair Muhammad is concerned, he was allegedly armed with gun and present at the spot along with co-accused and facilitated co-accused and extended support to him by restraining other people not to come near to them by making aerial firing. In the existing circumstances the applicant Khair Muhammad has played active role along with co-accused Nooruddin, even after committing murder of deceased and by opening fire in air along with other accused restraining prosecution witnesses and other villagers from coming nearby them so that no one should rescue deceased. In the circumstances, applicant Khair Muhammad has not been able to make out a case for grant of bail to him. It was therefore, that by short order, dated 11-5- 2009, the applicant Faiz Muhammad was granted bail on his furnishing solvent surety in the sum of Rs,400,000 (Four lacs), and P.R. Bond in the like amount to the satisfaction of learned trial Court, and applicant Khair Muhammad was declined bail, and these are the reasons for the same.
7. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.