1. MUHAMMAD TASNIM, J.---Through this Bail Application, the applicants have challenged the order, dated 14-6-2010 passed in Criminal Bail Application No, 393 of 2010 by learned Sessions Judge", Sukkur,, denying bail to the present applicants. However, .granted bail to one co-accused.
2. ' The present applicants are booked in Crime No 19 of 2010; registered with Police Station Jhangro for offence under sections 302, 324, 337-H(2), 147;148; 149, 114, P.P.C.
3. ' Precisely, stated facts of the F.I.R. are that complainant Wahid Bux Bharo got the same registered on 4-5-2010 by stating that some time back, his cattle was forcibly taken by Sikandar alias Dara, and Samandar Jagirani, to whom he asked for returning the cattle, hence they were annoyed. On the day of incident. Complainant, his brother Sobdar, relatives Muhammad Younus and Ghazi alias Ghulam were grazing their cattle in the land where at about 4.45 a.m. Accused Fateh Muhammad alias Fatoo, Samandar and Gulsher armed with K.Ks., Sikandar alias Dara armed with gun and Urs armed with Lathi, along with two other unidentified persons, who were armed with pistols, came and at the instigation of accused Sikandar alias Dara, co-accused Fateh Muhammad alias. Fatoo fired at complainant's brother Sobdar which hit him and he fell down. The other co-accused fired upon complainant party but they took shelter by lying themselves on the ground. After that, accused' persons went away while firing in the air. Ultimately, the complainant saw his brother who succumbed to injuries and took him to Hospital and thereafter, got the F.I.R. recorded.
4. ' Learned Counsel for the applicants has submits that there is delay in lodging if F.I.R. and such delay has not been explained. He further submits that there is delay of 19 days in recording of statements of the witnesses under section 161. Cr.P.C. which has not been plausibly explained by the prosecution. Learned Counsel says that no recovery, whatsoever, has been effected from the `present applicants. He further says that there was previous enmity between the parties and for this reason alone, all the family members including one son of Sikandar's brother have been implicated in the present case. He also says that there is no allegation, whatsoever, in the F.I.R. in respect of Sikandar, Gul Shar and Asad alias Samandar. He further argues that co-accused Urs has already been admitted to bail by the trial Court, though he was shown to be present at the scene in the F.I.R.
5. Learned Counsel says that similar treatment may be extended to the present applicants by applying the rule of consistency.
6. ' In support of his contentions, he has relied upon the cases: (1) Muhammad v. The State, 1998 SCM R 454 (2) Attaullah and 3 others v. the State, 1999 SCM R 1320 (3) Muhammad Sadiq and others v. The State, 1996 SCM R 1654 (4) Abdul Sattar and others v. The State, 2009 PCr.LJ 575 (5) Sam Khan v.
7. Muhammad Ajmal and 2 others, 2006 SCM R 66 and (6) Rahat Ali v. The State, 2010 SCMR 548.
8. ' On the other hand Mr. Qurban Ali Malano, learned Counsel for the complainant has vehemently opposed the grant of bail. He submits that learned trial Court has properly appreciated the material available on record and bail to the present applicants was rightly denied. He further says that applicants are involved in a heinous offence which falls under prohibitory clause of section 497, Cr.P.C, hence they are not entitled to grant of bail. He further submits that there is ample material available on record which connects the present Applicants with the commission of offence. In the end, he says that present Bail application be dismissed and in support of his aforesaid contentions, learned Counsel has placed reliance on the case of Muhammad Arshad v.
9. The State, reported in 2006 SCM R 966.
10. ' On the part of the State, learned DPG has adopted the arguments, advanced by learned Counsel for the complainant and has further submitted that medical evidence is in line with the allegations in the and the bail to the present applicants was rightly refused by the learned trial Court. He submits that an innocent person has died and the applicants cannot be admitted to bail.
11. ' I have heard the learned counsel for the parties arid have perused the record so also the case- law cited at the bar.
12. 'From the perusal of it is manifestly clear that role for making firing and killing Sobdar has been attributed to Fateh Muhammad but, no role has been assigned to the present applicants except that they were armed with weapons and whey made aerial tiring. It is admitted position that no injury was caused by the present applicants to anyone present at the site. Only injury sustained by the deceased was on the right side of the neck and as per medical report, only one injury exit and entry has been shown. Apart from this, there Is no material to connect the present applicants with the commission of the offence.
13. ' I am mindful of the fact that at the bail stage, deeper appreciation of the evidence cannot be gone into. However, prima facie, A it is to be seen as to whether applicants are connected with the offence or not. A perusal of the record shows that F.I.R. was lodged after delay of about 15 hours but no explanation, whatsoever, has been placed on record. There is also delay of 19 days in recording of statements under section 161, Cr.P.C. The honourable Supreme Court, while dealing with the issue with regard to recording of statements of the witnesses under section 161, Cr.P.C. with an unreasonable delay, has held that "delay in recording the statement of witnesses by Police without furnishing any plausible explanation, is fatal to the prosecution case and the statement of such witness is not to be relied upon." No doubt, this Judgment does not relate to the bail matter.
14. However, the rule laid down by the honourable Supreme Court will be equally applicable to the circumstances of the present case.
15. ' The other Judgments cited by the learned Counsel for the applicants fully support his case. On the contrary, Judgment cited by the learned Counsel for the complainant is distinguishable on facts. In the Judgment cited by the learned Counsel for'the complainant, parties were litigating in some other criminal matter, hence it was observed by the honourable Supreme Court that "accused had not specifically nominated in the F.I.R. with specific role of raising Lalkara to facilitate the principal accused to commit the murder of the deceased. Prior to the present occurrence, a criminal case was got registered against the accused at the instance of the deceased, wherein he and his daughter had to appear as witnesses". In such background, it was observed that at this stage.
16. Lalkara raised by the accused was proverbial and honourable Supreme Court came to the conclusion that the applicant in that case was not entitled to bail, but the facts of present case are entirely different. Perusal of the F.I.R. shows that no rule, whatsoever, has been assigned to the present applicants and the learned trial Court has miserably failed to take note of this aspect of matter and has fallen in error.
17. 'Since there are more than one reasons, i.e, delay in lodging of F.I.R., delay in recording of statements under section 161, Cr.P.C, no recovery from the accused persons, in my view, the case attracts the provisions of subsection (2) of section 497, Cr.P.0 calling for further enquiry in the matter.
18. ' Accordingly, I admit the present applicants to bail on their furnishing solvent surety in the sum of Rs, 2,00,000 (Rupees Two Lac) each and execution of Personal Bonds in the. like amount to the satisfaction of the trial Court.