' ABDUL RASOOL MEMON, J.---Through this application, the applicant Dharel alias Khamiso Jakhrani seeks post-arrest bail in Crime No,16 of 2012 of Police Station Kashmore, under sections 302, 337- H(2), 114, 147, 148, 149, P.P.C. From this court, as his similar request was turned down by the learned trial Court, vide order dated 5-5-2012.
2. The facts of prosecution case in brief are that, on 7-2-2012 at 1-00 p.m. Complainant Amanullah Jakhrani lodged report with Police Station Kashmore, which reads as under:-- "It is complained that about two years ago some thieves had entered into the house of accused Mirhaan Jakhrani and others, as such uncle of accused Mirhaan Jakhrani, namely, Mirzan Jakhrani was murdered and they suspected my cousin Shahzado to be the culprit of the same. We were kept on asking accused Mirhaan Jakhrani that we are innocent and not involved in the crime and also asking them for taking oath and private "Fasila". However, accused Mirhaan and others shifted away towards Punjab, and they were threatening us that they will not spare us and will take revenge of Mirzan. Today, I my cousins Sher Muhammad son of Manjhi, 2: Sher Baz son of Dildar Kambrani boarding on one motorcycle and my 'son Bakhtiyar Khan, my uncle, Wado Khan son of Muhammad Usman and cousin Shahzado son of Wado Jakhrani Boarding on another motorcycle proceeded from our house for Badani town with some work by Badani road. My son was ahead of us, my cousin Shahzado was driving the motorcycle. We crossed Guddu bridge, and in-front of us we saw and identified that on one motorcycle accused Sadho son of Yasin,
2. Mirhaan son of Halo alias Tufail Ahmed,
3. Bagan son of Panyo alias Kamal and on another motorcycle accused 4.
Sadar son of Muhammad Yaqoub,
5. Dharel alias Khamiso, son of Dilshad,
6. Abdul Sami alias Kato son of Muhammad Saddique alias Chutto and on third motorcycle accused Altaf son of Nadho all by caste Jakhrani, resident of near Manghrah, presently Layya Punjab accompanying two unidentified persons having Kalashnikovs, while rest of the accused by stopping their motorcycle got down from. Them and taking out T.T. Pistols from their folds signaled us to stop, to which my cousin Shahzado stopped the motorcycle and got down from it, as such accused Sadho and Mirhaan instigated rest of the accused to kill and take revenge of Mirzan; on their instigation accused Saddar and Dharel alias Kharniso fired directly from their T.T pistols with intention to commit murder at my uncle Wado Khan, which hit him, accused Abdul Sami alias Katto and Altaf straightly fired from their T.T pistols at my cousin Shahzado With intention to murder which hit him; we being empty handed and due to fear stopped there and started raising cries, as such accused Sadho and Mirhaan with intention to commit murder fired directly from their T.T pistols at my son Bakhtiyar Khan which hit him and he fell down on the ground, as such accused Bagan came over them and he made two shots from T.T pistol at my son Bakhtiyar Khan which hit him. Thereafter, all the accused by boarding on same motorcycles went back towards east by the road leading towards Badani while making aerial firing being in happiness. Then, we saw that my son Bakhtiyar aged about 60-years had injuries on his abdomen, left nipple, right shoulder and on upper part of left arm; my uncle Wado Khan had injuries on right side of his neck, right buttock and my cousin Shahzado had injuries on left side of his neck, left side and right side ankle; they were bleeding and they died within our sight. Then, Sher Muhammad disclosed that motorcycle of accused Sadhoo and others was crown Lifan, with registration No, R.No,8556 thereafter, I arranged the conveyance and with the help of above named witnesses and have brought dead bodies of all three deceased at police station and report the matter that above named accused with their common intention duly armed with deadly weapons due to aforementioned annoyance have committed murder of my son Bakhtiyar Khan aged about 60-years, my uncle Wado Khan aged about 55-years and my cousin Shahzado aged about 32-years on the instigation of accused Sadhoo and Mirhaan by making T.T pistols shots in collusion of each other and all the accused persons in order to create harassm ent made aerial firing. The unknown culprits have been seen by me and my witnesses and could be recognized. I am complainant, pray for justice."
3. Heard learned counsel for the parties. The learned counsel for the applicant contended that applicant was not present at the scene of incident and at that time he was admitted at Rural Health Complex, Mianwali Qureshian, District Rahim Yar Khan upto 6-2-2012 and was discharged from hospital on 8-2-2012 and in proof whereof copy of discharge slip and Memo of bill of medical store of Mianwali have been annexed with the bail application. He further added that there are general allegations of making fires upon deceased Wado against the present applicant and co- accused Saddar, therefore, it is yet to be seen at trial that which of the injury become fatal for causing death of deceased. Learned counsel further contended that parties are inimical to each other and earlier one Sahoolat Ali, the son of the applicant, was murdered by the complainant party and such F.I.R No,54 of 2011 was lodged by brother of applicant, and on account of that, this F.I.R was lodged. He further stated that co-accused Altaf and Abdul Sami alias Katto have been let off by the police while placing their names in Column No, II of the, challan sheet. In support of his contention, learned counsel placed his reliance on case of Jaffer v. The State (1980 SCM R 784), Ahmed v. The State (2007 PCr.LJ 987).
4. On the other hand, learned State counsel assisted by learned counsel for the complainant opposed grant of bail on the grounds that deeper appreciation of evidence is precluded at bail stage and from the tentative assessment it is evident that name of the applicant is mentioned in the F.I.R with specific role of causing fire from T.T pistol at uncle of complainant, namely, Wado Khan, which hit him. There is recovery of seven empties from the place of vardat, which support role of firing by the accused persons. He further added that the applicant along with co-accused by riding on motorcycle in pre-planned manner reached at place of vardat and in furtherance of common object by forming an unlawful assembly not only committed rioting but also participated in the commission of murder of three innocent Persons. He further contends that plea of alibi was not taken before the trial Court at the time of filing and hearing of the bail application and even no any material has been placed by the applicant before the Investigating Officer. He lastly contended that two accused let off by the police have been joined by the trial Court, therefore, at this stage applicant is not entitled to bail.
5. Arguments have been heard. Perused the record.
6. The alleged incident taken place on 7-2-2012 at 1-00 p.m. And the F.I.R. Was promptly lodged on the very same day at 2-00 p.m. Perusal of F.I.R. Would show that the applicant along with co- accused reached at place of vardat being armed with T.T pistol and used his weapon effectively by firing upon Wado Khan, who died instantaneously. The recovery of seven empties of .30-bore from place of occurrence support the role of firing attributed to the applicant. Per postmortem report, deceased Wado Khan has received two fire-arm injuries on his person, which corroborates contents of the F.I.R. The plea of alibi was neither taken by the applicant during course of investigation nor before trial court at the time of hearing of his bail application; he has taken such plea after rejection of bail application by the trial court, which appears to be afterthought.
7. In view of reasons enumerated above, I am of the considered view that the applicant has failed to make out a case for bail. Accordingly, this bail application stands dismissed. However,. The observations made hereinabove are tentative in nature and only for the disposal of this bail application.