1. ' GHULAM SARWAR KORAI, J.---This application under section 497, Cr.P.C. Has been filed for release of the applicants on bail.
2. ' The facts of the case are that on 21-12-2010 at 9-00 a.m. Hubdar Ali lodged F.I.R. Stating therein that his brother Deedar Ali aged about 35/36 years was serving in Police Department and was posted at Police Station, Jhabar Shaikh. On 5-12-2010 he along with P.C. Pir Bakhsh came at Police Station, Madeji and were performing their duties at Shell Petrol Pump Chowk Madeji. At evening time, complainant along with his maternal cousin Imdad Ali and Khadim Hussain came at Madeji Town on their Motorcycle and met with Deedar Ali then all four on their Motorcycles as well as constable Pir Bux on his Motorcycle came at Hotel of Rahim Junejo and took Tea. At that time constable Pir Bux received call on his Mobile phone. Thereafter the complainant along with Imdad Ali and Khadim Hussain proceeded on their motorcycle towards their village while his brother Deedar Ali along with P.C. Pir Bux proceeded on their motorcycle to their Police Station. While they reached at Janata Gah Madeji at abuot 8-45 p.m. 6 persons came in their way on the road. They were seen on the light of Motorcycles and identified as Rustam, Khair Muhammad, Dilshad Saleem and Manzoor all Panhwar by caste resident of Village Paleeja Panhwar along with one unidentified persons duly armed with Kalashnikovs. They signaled them to stop, therefore, the complainant party stopped their motorcycles. Co-accused constable Pir Bux gave hakal to the complainant by saying that Deedar Ali will not be spared. He allegedly took Kalashnikov from co-accused Saleem and fired upon Deedar. Ali with intention to kill him so also co-accused Rustam fired from his Kalashnikov upon Deedar Ali which hit him and he fell-down. Then all accused made their escape by raising slogans and making aerial firing. The complainant party saw Deedar Ali who was injured, blood was oozing and was dead. The fire shots attracted to the people of the locality who came there. The dead body of Deedar Ali was shifted to Hospital and after funerals complainant approached the S.H.O. Police Station Madeji for registration of F.I.R. But he was informed that Crime No,73 of 2001 under Article 17(4) Offences Against. Property (Enforcement of Hudood) Ordinance, 1979 has already been registered by PC Pir Bux. Then he filed Criminal Miscellaneous Application under section 22-A(6), Cr.P.C. In the court of learned Sessions Judge Ex-officio Justice of Peace, Shikarpur and while his application was allowed on 20-12-2010 on the next day lodged F.I.R.
3. ' The applicants accused and co-accused P.C. Pir Bux and Zamir were arrested on 21-12-2010 and challan was filed on 5-1-2011 placing the names of co accused Rustam, Dilshad and Manzoor as absconders. The bail application of the applicants and co-accused Zamir was filed on-11-2-2011 but their bail application was dismissed by the court of learned 1st. Additional Sessions Judge, Shikarpur while bail to co-accused Zamir was granted vide order dated 18-2-2011 and that was impugned in the present bail application.
4. ' Heard Messrs Altaf Hussain Surhio, Advocate for the applicant Amir Ahmed Narejo Advocate for complainant and Naimatullah Bhurgri, Advocate for the State.
5. ' Learned counsel for the applicants/accused contended that the applicants are innocent and they have committed no offence whatsoever alleged by the prosecution. The complainant and P.C. Pir Bux were stopped by the accused Rustam and others P.C. Pir Bux and co-accused Rustam allegedly fired from their Kalashnikovs resultantly Deedar Ali was murdered. There is no role against the applicants. He further contended that the applicant Khair Muhammad is serving as Campus Warden in Vocational Training Centre Naudero and was on duty on the date of alleged incident.
6. Such certificate has been issued by Principal. Vocational Training Centre Government of Sindh Naudero. He further contended that actually Deedar Ali was murdered by unknown persons while they were trying to commit Harabah. Such F.I.R. No,73 of 2010 was registered by co-accused PC Pir Bux. But this F.I.R. Was malafidely lodged by the complainant against applicants and co-accused on 21-12-2010. He further contended that even the application under section 22-A(6), Cr.P.C. Was filed by the complainant in the Court of learned Sessions Judge/Ex-Officio Justice of Peace Shikarpur on 15-16-2010 with delay of about 10 days without any explanation. He lastly contended that the deceased Deedar Ali was serving as Police Constable with co-accused Pir Bux at Police Station, Jhanbar Shaikh and came at Police Station Madeji for performing their duties and on 5-12- 2010 for whole day they were on duty. Nothing was done by co-accused Pir Bux earlier at the place of their posting nor on the day of their duty. Even there is no motive to kill deceased Deedar Ali. He lastly contended that there is major contradiction between the contents of the application under section 22-A(6), Cr.P.C. So also in the F.I.R, therefore, the case of the prosecution is highly doubtful.
7. He prayed that the applicant be released on bail. He relied upon the case of Muhammad Sadiq and another v. The State 1996 SCM R 1654, Muhammad v. The State 1998 SCM R 454, Faraz Akram v.
8. The State 1999 SCM R 1360, Noor Muhammad v. The State 2009 SCM R 324 and Manzoor Hussain and another v. The State 2011 SCM R 902.
9. ' Mr. Amir Ahmed Narejo, Advocate filed Vakalatnama on behalf of complainant which was taken on record. He opposed the bail application on the ground that the Deedar Ali brother of the complainant lost his life and role is attributed to co-accused Pir Bux and Rustam. The applicants were in their company, therefore, they are not entitled to be released on bail. He relied upon the case of Muhammad Sadiq and others v,. The State 1980 SCM R 203, and Ch. Waris ,Ali v. The State 2007 SCM R 1607.
10. ' His argument were adopted by the learned State counsel.
11. ' I have perused the file. Admittedly, Deedar Ali was serving as PC with co-accused Pir Bux at Police Statoin, Jhanber Shaikh. Both came at Police Station Madeji to perform their duties on 5-12-2010 and for whole day they remained on their duties. While they spared from the duty came at Hotel of Raheem Junejo, took tea along with complainant and his relatives lmdad Ali and Khadim Hussain.
12. While all the persons were in the way were allegedly stopped by accused Rustam and others.
13. Deceased Deedar Ali was on the same motorcycle with accused P.C. Pir Bux. Co-accused Pir Bux allegedly fired upon him by Kalashnikov so also co-accused Rustam but there is absolutely no motive for his murder. On the very day of the incident F.I.R. Was registered by co-accused P.C. Pir Bux against 6 unknown persons stating therein that they tried to commit Harabah. But while they resisted the culprits then they fired upon them resultantly Deedar Ali lost his life. Application under section 22-A(6), Cr .P .0 . Was filed by the complainant on 15-12-2010 after 'about 10 days from the date of alleged incident without any explanation. In the application he alleged that accused Pir Bux and Saleem fired from their Kalashnikovs upon Deedar Ali and committed his murder. Then accused Rustam also fired from his Kalashnikov upon Deedar Ali. But in the F.I.R. He alleged that accused Pir Bux took Kalashnikov from co-accused Saleem and fired upon the deceased so also accused Rustam, and Deedar Ali lost his life. Another accused Zamir was implicated in this case on the statements of witnesses under section 161, Cr.P.C. And he was also arrested, his bail aplicatoin was not opposed by the complainant, therefore, he was granted bail. By this way, the case of the prosecution is of four versions. Firstly F.I.R. Was registered against unknown accused persons by P.C., Pir Bux; secondly application for registration of F.I.R. Was filed by the complainant with delay of about 10 days and role of firing is only against P.C. Pir Bux, Saleem and Rustam; thirdly in the F.I.R.
14. Role is against P.C. Pir Bux and co-accused Rustam and fourthly co-accused Zamir implicated -in the statements of witnesses recorded under section 161, Cr.P.C. And his bail application was not opposed by the complainant therefore, I am of the view that complainant and witnesses are not eyewitnesses and present applicants have been implicated falsely due to some grudge, therefore, entire case of the prosecution is of further enquiry.
15. ' So far the case-law cited by the learned counsel for the A complainant is concerned in the first case the honourable Supreme Court has observed that date of the trial has already been fixed therefore, the bail application was dismissed and in the second case the principles of the pre- arrest bail have been discussed. The facts and circumstances of the present case are quite distinguishable from the case-law cited by the learned counsel for the complainant.
16. ' From the above discussion, am of the view that the applicants succeeded to make out their case for their release on bail. Consequently, their bail application is allowed. Applicants may be released on bail, subject to their furnishing solvent surety in the sum of Rs,3,00,000 (Three Lacs) and P.R.
17. Bond in the like amount to the satisfaction of trial Court.