1. MUHAMMAD TASNIM, J.---Through this Criminal Bail Application, the applicant has challenged the Order, dated 25-6-2009 passed by 1st Additional Sessions Judge, Sukkur in Criminal Bail Application No, Nil of 2009, whereby Bail Application tiled by present applicant was dismissed.
2. The applicant feels himself aggrieved and files present Bail Application seeking grant of bail from this Court.
3. Briefly, stated facts of the case are that complainant Mah Bibi got registered F.I.R. No, 96 of 2008 with Police Station "C" Section, Sukkur. alleging therein that she was residing with, her five daughters and six sons. There has been some old enmity between complainant and Sain Bux Brohi.
4. On 30-7-2008, Sherazi alias Sher Ali Brohi came to her house with her husband and demanded the hand of her daughter Sumera. Meanwhile, her nephew .Nazar Muhammad also came there and they all slept there. At about 6-00 a.m., Sherazi alias Sher Ali woke up and went to offer prayer.
5. Complainant also woke up and sent her nephew Nazar Muhammad to purchase milk. At about 6- 30 a.m., three persons entered the house whom the complainant saw and identified to be Sherazi alias Sher Ali, Sain Bux and Nabi Dad, all were armed with K.Ks. Accused Sherazi fired with K.K on the son of Complainant namely Amanullah who was sleeping in a room. Accused Nabi Dad fired with K.K on daughters of complainant namely Sumera and Noor Jehan, who were also sleeping, on which the complainant cried. Whereupon, Wazir Ali and Nazar Muhammad came who saw the accused persons; and the accused persons went away. Thereafter, the complainant party saw the injured persons namely Amanullah Noor Jehan and Sumera, who all had succumbed to injuries.
6. The dead bodies were taken to Civil Hospital and afterwards F.I.R. was registered.
7. In support of his contentions, learned counsel for the applicant submits that the name of present applicant does not appear in the F.I.R. He says that statements of two witnesses namely Nazar Muhammad and Wazir All were recorded about two-months after the date of occurrence who stated in their statements that accused Sherazi alias Sher Ali had committed the offence. Learned counsel submits that the present applicant's name is Soomar. He is neither Sherazi nor alias Sher Ali and nor has any concern with the above named persons. Learned counsel further says that this is a case of misidentification and present applicant is resident of Jamshoro which is about 350 kilometers from the place of occurrence and he further says that after two months of the occurrence, present applicant was arrested and no recovery was effected from him. Learned counsel further says that both the Prosecution Witnesses namely Wazir Ali and Nazar Muhammad have filed their Affidavits stating therein that present applicant is neither Sherazi nor Sher Ali, whose name appears in F.I.R. or in statements under section 161, Cr.P.C. Learned counsel, while attacking the impugned order, has stated that the order; passed by learned Additional Sessions Judge, is non-speaking order, which violates the provisions of section 24-A of General Clauses Act, and is liable to be set aside on this ground alone. Learned counsel further says that the applicant has been kept behind the bars without any just cause or reason and there is no evidence available on record which connects the present applicant with the commission of offence.
8. On the other hand, learned A.P.-G. has invited my attention to the -statements of P.Ws. Wazir Ali and Nazar Muhammad who have specifically named the accused as Sherazi alias Sher Ali. He further says that since an innocent person has died, the case falls under the prohibitory clause and it is a heinous offence, hence the present applicant is not entitled to bail. He further supports the Order passed by learned Additional Sessions Judge and says that present Bail application be dismissed. In support of his contentions, learned A.P.-G. has placed reliance upon Liaqat Ali v. The State (1995 M LD 1254).
9. I have heard the learned counsel for parties and have gone through the record.
10. It is an admitted position that name of the present applicant does not find place in the F.I.R. The present applicant has been arrested on the basis of statements of two witnesses under section 161, Cr.P.C, wherein they have implicated one Sherazi alias. Sher Ali, but none of the aforesaid witnesses has named the present applicant. Apart from above, there is no other material on the basis of which present applicant has been detained. The witnesses, who had allegedly implicated Sherazi alias Sher Ali, had filed their two separate Affidavits: one before this Court and one before the learned Additional Sessions Judge, who is ceased of the matter, stating therein that present applicant is not Sherazi alias Sher Ali.
11. In view of above position, it appears to be a case of mis-identification and detention of applicant behind the bars will not be proper.
12. In view of above I admit the present applicant to bail on his furnishing solvent surety in the sum of Rs, 3,00,000 (Rupees Three Lac) and execution of Personal Bond in the like amount to the satisfaction of the trial Court.
13. The observations, made in this order, are tentative in nature and will not affect the pending proceedings before the learned trial Court.
14. In the end, my attention has been invited to the proceedings of the Case, where only Charge has been framed but no Prosecution witness has been examined. Learned trial Court is directed to conclude the trial within three months and pass judgment under intimation to this Court.