MUHAMMAD TASNIM, J.---The applicants are booked in Crime No,176 of 2010 of Police Station Shaheed Fazil Rahu, under sections 324, 114, 341, 147, 148, 149, 427, 337-A(i), 337-H(2) and 337-L(2), P.P.C.
The story of prosecution case as set out in the F.I.R. is as under:-- "It is complained that I am zamindar and live at above mentioned address along with my other relatives. One day back, Noor Ahmed alias Teeta Pathan, Saleh Shah Pathan, Shahzad Ali. Pathan and others exchanged hot words with my relative Asad Cheema and they were annoyed. Last night, I, Zahoor Illahi Cheema and Malik Moazzam came in town in car of Zahoor Illahi Cheema for purchasing goods and when crossed Dr. Asad Hospital via Golarchi-Ahmed Rajo Road, there were on the road, each Nasir Shah Pathan,
2. Saleh Shah Pathan,
3. Imran Shah Pathan and 4. Mazhar Shah Pathan, all four sons of Hazrat Shah Pathan, having pistols in their hands,
5. Noor Ahmed alias Teeta Pathan, having pistol,
6. Habib Rehman, having pistol,
7. Shahzada Ali Pathan,
8. Zakir Hussain Pathan, both having repeaters,
9. Hazrat Shah Pathan,
10. Haji Shireen Pathan, both empty handed, 11 Zulfiquar alias Zulqad,
12. Sulleman Pathan,
13. Rashid Pathan, both sons of Haji Shireen Pathan and 2/3 unknown persons, to whom can identify, on seeing, having lathies in their hands and they encircled us on the road and yet, we stopped the vehicle and alighted Hazrat Shah Pathan and Haji Shireen Pathan, by instigating all the accused persons said not to spare them and beat them to kill, on which, all the accused persons by rioting attack and Nasir Shah Pathan and Noor Ahmed alias Teeta Pathan made straight fires, with the intention to kill us. The shot fired by Nasir Shah hit on the right leg of Zahoor Illahi and the shot fired by Noor Ahmed alias Teeta Pathan hit on the ankle of the left foot of Zahoor Illahi, while Habib Rehman Pathan made straight' fire with pistol upon Malik Moazzam with the intention to kill him, which hit on back and Shahzad Ali inflicted the repeater butt blow on the head of Moazzam and Zakir Hussain inflicted repeater butt blows to Zahoor Illahi on his head and Saleh Shah Pathan and Mazhar Shah Pathan fired from their pistols upon the car of Zahoor Illahi and busted its tyres and all remaining accused persons broken the front and back glasses of car by inflicting lathi blows, meanwhile Malik Lutuf Awan and Mohib Ali Shahani came there and they interfered and rescued us. Thereafter, all the accused persons by making aerial firing went away. Then, we took Zahoor Illahi Cheema and Malik Moazzam to Taluka Hospital, Shaheed Fazil Rahu and getting first aid took them to LUMHS Hyderabad and then after treatment appeared and complained that on the instigation of Hazrat Shah Pathan and Haji Shireen Pathan, the above mentioned accused persons with their common intention, by rioting attacked and illegally restraint us on the road, the accused Nasir Shah Pathan, Noor Ahmed alias Teeta Pathan made straight fires, with the intention to kill, have injured. Zahoor Illahi, while Habib Rehman Pathan made pistol fire and Shahzad Ali Pathan by inflicting butt blows to Malik Moazzam, with the intention to kill him, got him seriously injured and the remaining accused persons by inflicting blows to car of Zahoor Illahi caused damage to it, I am complainant, investigation may be done."
In support of the present bail application the learned counsel for the applicants has submitted that as many as 13 accused persons are nominated in the F.I.R. He further submits that the entire offence was committed on the instigation of Haji Shireen Pathan and Hazrat Shah Pathan. The learned counsel submits that during the investigation police has let off the said Haji Shireen Pathan and Hazrat Shah Pathan. He further submits that Haji Shireen Pathan had lodged an F.I.R. being Crime No,175 of 2010 against the complainant party. He says that present F.I.R. has been lodged against the applicants just to force them to withdraw from pursuing the proceedings arising from F.I.R. No,175 of 2010. The learned counsel for the applicant has submitted that no private witness has been associated by the police in this case though the incident has taken place in a very thickly populated area. Learned counsel further submits that co-accused Haji Shireen Pathan, Hajrat Shah Pathan, Zakir and Sulleman have been let off by the police. He further submits that similar treatment may be given to the present applicants by following the rule of consistency, as the case of present applicants is similarly placed as that of co-accused Haji Shireen Pathan Hajrat Shah Pathan, Zakir and Sulleman. Learned counsel for applicant has further submitted that injury sustained by Moazzam is simple in nature and falls under section 337-A(i), P.P.C. He further says that even otherwise prosecution does not have any material against the present applicants making this case probable for conviction. Learned counsel further submits that present applicants were admitted to interim pre-arrest arrest subject to furnishing solvent surety in the sum of Rs,50,000 each with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court per order dated 21-9-2010. Learned counsel says that the aforesaid order be confirmed. In support of his contention he placed reliance upon the cases of MEERAN BUX v. STATE (PLD 1989 SUPREME COURT 347) , MUHAMMAD AZAM v. STATE (2008 SCM R 249), UMAID ALI v. STATE (2008 SCM R 1419) and MUHAMMAD MURAD v. STATE (2002 PCr.LJ 1051 (Karachi).
As against the above, learned Deputy Prosecutor-General has conceded for confirmation of bail to applicants Zulfiquar Ali, Rasheed Ahmed, Imran Shah and Mazhar Hussain Shah on the ground that no active role has been assigned to these applicants, however, role of firing upon the car of Zahoor Ellahi has been assigned to Mazhar Hussain Shah but no one has sustained any injury due to the firing of applicant Mazhar Hussain Shah.
Now taking up the case of applicant Shahzad Khan, who allegedly caused injury with butt blow to Malak Moazzam on his head, a perusal of the F.I.R. shows that similar role was assigned in the F.I.R. to co-accused Zakir, who allegedly hit Zahoor with butt blow on his head and has been let off by the police. The learned Deputy Prosecutor-General stated that Shahzad's case is similar to that of Zakir and he has no objection if similar treatment is given to applicant Shahzada, as was given by police to Zakir.
With regard to applicant Habib Rehman Khan, learned Deputy Prosecutor-General submits that he has caused injury to Moazzam by making firing from his pistol, but Moazzam had sustained such injury on his back. Learned Deputy Prosecutor-General further conceding to the fact that as per medical evidence the injury sustained by Moazzam is on non-vital part and is simple in nature and falls under section 337-F(i), P.P.C. which is bailable offence .
I have heard the learned counsel for the parties and have perused the record and the case-law cited at the bar. It is the settled-law that at the bail stage deeper appreciation cannot be gone into but only a tentative assessm ent of the record has to be made just to find out that the applicants before the Courts are, prima facie, connected with the offence. A perusal of the record shows that no role has been assigned to applicants Zulfiqar, Rasheed and Imran Shah, but .allegation of firing is made against-applicant Mazhar Hussain, but no injury has been sustained by anyone and learned 'Deputy' Prosecutor-General has frankly conceded to the confirmation of the interim pre- arrest bail already granted to the applicants.
Since the case of applicant Shahzad Khan is similarly placed to that of co-accused Zakir, following the rule of consistency he is also entitled to bail, though Zakir has been let off by the police, learned Deputy Prosecutor-General has no objection if applicant Shahzada Khan is also granted bail. Since applicant Habib Rehman, though has caused injury to Moazzam on his back, which injury according to the medical report is simple in nature, and as submitted by learned Deputy Prosecutor-General, falls under section 337-F(i), P.P.C., which is bailable.
In these circumstances, I allow this criminal bail application and confirm the interim pre-arrest bail already granted to the applicants per order dated 21-9-2010, on the same terms and condition.