'SALMAN TALIBUDDIN, J.- This is an application under section 497,Cr.P.C, praying that the applicant/accused Kaloo son of Soomar may be admitted to bail in Crime No,355 of 2008 P.S. Dadu, under sections 302, 324, 337 H(ii), 147, 148, 149, 504, P.P.C.
2. The complainant in this case is Haji Abdul Sattar son of Mevo Khan by caste Kabooro resident of village Karimdino Kabooro Taluka and District Dadu. His statement, as per the English translation of the F.I.R, attached to the bail application is as under:- "Complaint is that I reside at the above given address and used to cultivate the land. On 30-7-2008 in the morning the cattle of Soomar Kaboro entered in my crop, we returned back, on which hot words were exchanged between our children and Soomar due to this Soomar Kaboro was annoyed. On the same day I and my son Abdul Jabbar and nephew Ghulain Nabi son of Ghulam Qadir together went to Makhdoom Bilawal at about 11-00 noon reached near Pir Gunio shakh saw that one Soomar son of Akk 2. Leemo 3. Kalo 4. Imdad Son of Deemo armed with pistol all by caste Kaboro resident of village Punho Kaboro are raising hakals and running towards us, out of them Soomar Kaboro abused and instigated all the above 4 accused that kill them due to this accused Leemo ^and Kalo Kaboro straight fired from their Kalashnikovs with intention to kill my son Abdul Jabbar who sustained fire injured and fell down we gave heavens sake and accused Imdad and Azeem Kaboro were firing upon us. Thereafter the accused after firing went to their village then we went near Abdul Jabbar and saw that he had received bullets of Kalashnikov on mouth, neck and left arm and blood was oozing, we immediately took Abdul Jabbar for treatment to Civil Hospital, Dadu, and such information through telephone conveyed to Dadu P.S and police came there who started necessary formality due to seriousness the said Abdul Jabbar was referred to Hyderabad to whom we took to emergency Hyderabad where I left my son Abdul Jabbar under treatment at present appear and make complaint that above said accused persons who were armed with lethal weapons made commotion due to damage of crop through cattle on the instigation of Soomar Kabro, accused Leemo and Kalu with intention to kill my son Abdul Jabbar straight fired with Kalashnikov and made him injured, hence this complaint for investigation".
3. The police investigated the case and submitted challan under section 173, Cr.P.C, showing the applicant/accused as absconder while accused Soomar was placed.In Column No,2 and accused Imdad was taken into custody. On 18-8-2008 the injured succumbed to his injuries and police inserted section 302, P.P.C, and arrested the applicant/accused on 4-9-2008 under supplementary challan.
4. The applicant/accused moved bail application before the learned IInd Additional Sessions Judge, Dadu on 14-4-2009 which was rejected vide order dated 8-5-2009, hence above application to this Court.
5. A In support of this bail application leamed counsel for the applicant/accused submitted that; the prosecution case against the applicant/accused is false and concocted; the role assigned to the applicant/accused in the F.I.R, is same that was assigned to accused Soomar and Leemo who were found innocent by the Investigating Officer and were placed under Column No,2, therefore, case against applicant/accused is one of further inquiry; the F.I.R, is delayed by about 1/2 hour which is not explained one, applicant accused has been involved in the case due to a quarrel that took place between children of the parties; alleged incident took place on 30-7-2008 whereas 161, Cr.P.C, statements of P.Ws, were recorded with delay of 6 days i.e, on 5-8-2008; the co-accused Imdad and Azeem have been admitted to bail by learned trial Court, therefore, applicant is entitled for same concessions under rale of consistency; as per provisional medical certificate deceased expired due to cardio respiratory arrest due to fire-arm injury on neck and it is not mentioned in the F.I.R, that which of the accused is responsible for such injury, therefore, case is one of the further inquiry; the deceased expired after 17 days of the date of the incident and registration of the case but no dying declaration was recorded either by the police or by doctor.
'Magistrate and third by prosecution witnesses who got their statement recorded after a long time.
Deceased died two weeks after making his statements, it was yet to be determined whether the same qualified to be his dying declaration. Additionally, the co-accused had already been released on bail which was not challenged by the prosecution; and Muhammad Azam v. The State, 2008 SCM R 249, where accused was admitted to bail on the ground that three co-accused were found innocent during police investigation had been released on bail and case of accused was at par with the case of co-accused as such accused was held to be entitled for bail under rale of consistency.
7. In response, learned counsel for the State conceded that the co-accused had been granted bail but submitted that this concession was made without application of judicial mind. Accordingly, the rale of consistency is not applicable.
8. Having considered the submissions of learned counsel and reviewed the material on record I find that this is a case of further enquiry particularly since the deceased expired 17 days after receipt of the injury and it cannot be said whether the death occurred due to the said injuries or some other cause. Additionally, I am not satisfied that the rule of consistency is not applicable to this case.
9. In view of the foregoing, the applicant/accused Kaloo son of Mevo Khan is admitted to bail subject to furnishing surety in the sum of Rs,200,000 and PR bond in the like amount to the satisfaction of trial Court.