1. ORDER MUHAMMAD TASNIM, J.---This bail application is directed against the order dated 26-6-2010 passed by the learned IInd Additional Sessions Judge, Sukkur in Criminal Bail Application No.437 of 2010 whereby declining , the bail to applicants Manzoor Hussain and Gada Hussain, who are wanted in Crime No.7 of 2008 Police Station, Jhangro registered for an offence under sections 302, 324 and 34, P.P.C.
2. The prosecution story is that the case was initiated on an F.I.R. Lodged at the instance of complainant Mehrab Jageerani on 17-5-2008 at 1300 hours alleging therein that the A.S.-I. Manzoor Hussain, A.S.-I., Gada Hussain (Applicants), PC Juman and PC Zameer stopped the complainant party near Taj Petrol Pump Ali Wahan when the complainant, his brother Shah Muhammad and his paternal nephew Soomar were coming back to their house on their motorcycle after attending the Sessions Court Sukkur and said the complainant party to sit in their vehicle on refusal applicant A.S.-I.. Manzoor Hussain fired with his pistol at Shah Muhammad brother of complainant with intention to kill him, which hit him and fell down by raising cry ,and subsequently he died in the hospital; hence this F.I.R. Was lodged as stated above.
3. The learned counsel for the applicants has submitted that as per F.I.R. One Shah Muhammad was killed in presence of complainant Mehrab, who is his real brother and one Soomar, who is son of the deceased have been shown eyewitnesses and no other private witness has been shown.
4. Additionally he submitted that the aforesaid two eye-witnesses have already tiled their affidavits stating therein that due to suspicion the present applicants were involved in the present case. He further submitted that there were in all four accused A.S.-I. Manzoor Hussain having pistol, A.S.-I.
5. Gada Hussain empty handed, PC Muhammad Juman having Kalashinkov and Zameer Hussain having Kalashinkov. He further submitted that PC Muhammad Juman and Zameer Hussain have already been admitted to bail' by this Court. He further submitted that the case of A.S.-I. Gada Hussain stands on better footing then the case of PC Muhammad Juman and Zarneer as they were arrested from the place of wardhat and were having arms with them whereas A.S.-I. 'Gada Hussain was empty handed and no role was assigned to him. He prayed that rule of consistency be followed and he be extended the similar relief as was extended by, this Court to Muhammad Juman and Zameer. He further submitted that case as set-out by the prosecution in the F.I.R. Is not supported by medical report. He further clarifies the above arguments by inviting my attention to the provisional medical report wherein injury has been shown on the body of the entirely opposite side as alleged in the F.I.R. He further pointed out the time of incident as disclosed in the provisional medical certificate which is about 44 minutes prior to the time of occurrence whereas the arrival of the body for medical examination at the hospital has been shown about half an hour prior to the time of occurrence as shown in the F.I.R. He has further submitted that aforesaid arguments were advanced before the learned Additional Sessions Judge but were not appreciated, specifically the point of filing of affidavits by the prosecution witnesses have not been disposed of in view of the settled law. In the end he submitted that the order passed by the learned Additional Sessions Judge is not proper and the same, be set aside and the present applicants be admitted to bail. In support of above contention reliance has been placed upon the following cases:- Abdul Salam v. The State (1980 SCMR 142)
6. Mohsin v. The State (1977 PCr.LJ 159), Zulfiqar v. The State (2002 PCr.LJ 791), Rehmat Ali and another v. The State (1979 SCMR 30), Muhammad Nawaz alias Najja v. The State (1991 SCMR 111), Syed Zahid Ali v. The State (1993 PCr.LJ 1489), Haji lnaytul Haq v. Said Muhammad Khan and another (1988 SCMR 1743), Muhammad Saddique v. Muhammad Abbass and another (1998 SCMR 284), Ibrahim v. Hayat Gul and others. (1985 SCMR 382), Mumtaz Ali v. The State (PLD 2007 Karachi 127)
7. Ibrahim v. Hayat Gul and others (1985 SCMR 382).
8. Conversely, the learned A.P.-G. Has supported the order passed by the learned Additional Sessions Judge and has further argued that specific role was assigned to applicant Manzoor Hussain; hence he is not entitled for the treatment already given to co-accused Muhammad Juman and Zameer.
9. He further argued that innocent person has died subsequent to sustaining injuries. However, he admits that no recovery from the present applicants have been made. In the end he argued that since all the accused persons are police employees; hence the police had not dealt with the matter in accordance with the law and investigation has not been conducted by them in accordance with law. He further said that the case was wrongly submitted to the learned Magistrate as declaring it in class 'C'. Lastly he argued that the applicants are not entitled to be released on bail.
10. I have heard the arguments of the learned counsel for the parties and have gone through the material placed before me with their assistance.
11. It is constitutional right of every individual to be dealt with equally and strictly in accordance with law. In the present case two accused namely PC Muhammad Juman and Zameer who were having Kalashinkovs in their hands were already admitted to bail by this Court whereas applicant Gada Hussain was empty handed and no role was assigned to him. In this way, the learned counsel for the applicants is right in arguing that the case of applicant Gada Hussain is on much higher pedestal than the case of co-accused Juman and Zameer Hussain. He has rightly argued that the rule of consistency be followed and applicant Gada Hussain be admitted to bail.
12. I am mindful of the fact that at the bail stage deeper appreciation of evidence can not be gone into and the Court only has to see as to whether the applicant/accused is prima facie connected with the commission of alleged offence or not. In this case the allegation made in the F.I.R. Are not supported by the medical certificate available on record on the ground that the case becomes doubtful and requires further enquiry.
13. Application stands disposed of in B the above terms.
14. Since the medical report is not supporting the version in the F.I.R. The case requires further enquiry as contemplated under subsection (2) of. Section 497, Cr.P.C.
15. With regard to filing of affidavits by the prosecution witnesses the learned counsel has relied upon the cases wherein consistent view of the superior Courts has been that the affidavits if filed by P.Ws at initial stage are to be taken into consideration section and considering such affidavits, accused/applicants were admitted to bail.
16. In the case of Muhammad Nawaz (supra), the Honourable Supreme Court has dealt with the issue as under:-- "Prosecution witnesses appeared in Court and supported averments made by them in their affidavits to the effect that accused was not implicated in occurrence, bail was granted."
17. Following the rule of consistency as laid down in the case of Abdul Salam (supra) applicant Gada Hussain is entitled for concession of bail. Whereas applicant .Manzoor Hussain is entitled to bail on the ground that the medical evidence is not supporting the version in the F.I.R. Which requires further enquiry.
18. In the circumstances I allow this application and admit the applicants to bail. They shall be released on bail subject to their furnishing solvent surety in the sum of Rs.200,000 (Rs Two lac) only each and P.R bond in the like amount to the satisfaction of the learned trial Court.