' SHAHID ANWAR BAJWA, J.---Subject matter of Criminal Bail Application No,219 of 2011 arose out of F.I.R. No,86 of 2010 recorded at Police Station, Warah on 29-9-2010 at 2355 hours for an incident alleged to have taken place at 2000 hours of the same day. Complainant was one Syed Ashique Hussain Shah. He stated that he, his two brothers and a friend were coming from a street towards their houses when at 8-00 p.m. As they reached the door of their house, they saw the applicant No,1 armed with a pistol, applicant No,2 armed with a Repeater and two other persons armed with pistols and one unidentified person having a gun. The accused persons are stated to have raised Hakal to brother of the complainant saying that they would kill him. It is stated in the F.I.R. That thereafter all the accused persons made straight fire at brother of the complainant, Syed Abid .Hussain Shah which hit him and he fell down. Cries were raised. Cries and fire shots attracted the neighbourers and seeing them the accused ran away while resorting to aerial firing. Abid Hussain Shah was said to have sustained injuries on the neck and back and died on the spot. As the complainant was going to Police Station to lodge F.I.R., he stated in the F.I.R., he came to know that accused Akhtar had been injured during firing and had also died.
2. Criminal Bail Application No,213 of 2011 has arisen out of F.I.R. 87/2010. The applicant is the same who is applicant No,-1 in Criminal Bail Application No,291 of 2011. Complainant was one Muhammad Bachal. This F.I.R. Was registered on 1-10-2010 at 2340 hours for an incident alleged to have taken on 29-9-2010 at 8-00 p.m. Complainant stated that on 29-9-2010 he, his brother Akhtar Ali (deceased) and two uncles were returning after finishing work when at about 8-00 p.m. As they reached the house of Syed Ashique Hussain Shah, they saw the applicant armed with pistol and three other persons; two armed with guns and one armed with Repeater along with two unidentified persons having Dandas in their hands. The complainant stated that he saw them running after Abid Hussain Shah while saying that the latter was their Karo and they would kill him. Upon this Akhtar Ali is said to have raised Hakal that Abid Hussain Shah be not killed. It, is alleged that present applicant and one Imdad fired their weapons upon Akhtar Ali which hit him and he fell down. While resorting to arial firing accused escaped. It is further stated that the latter on the complainant came to know that Akhtar Ali had died and his dead body was brought by Syed Ashique Hussain Shah to Hospital.
3. Learned counsel for the applicant submitted that in the first F.I.R. (F.I.R. No,86 of 2010) the applicants have been alleged to have Akhtar Ali and three other persons with them (in all five persons) and in the second F.I.R. (F.I.R. No,87 of 2010 it is alleged there were six persons. In second F.I.R. It is stated that it was Akhtar Ali who gave Hakal and applicants murdered Akhtar Ali. First F.I.R.
Does not say so. In second F.I.R. It is stated that Abid Hussain Shah was running and no such statement is made in first F.I.R. Same is position regarding KARO. Both the versions cannot be correct at the same time. No motive has been stated in the F.I.R. In the second F.I.R. There is no mention of murder of Syed Abid Hussain Shah. Therefore, in any case the two A F.I.Rs, are in contradiction with each other and it is yet to be seen as to which version is correct. He further submitted that in the first F.I.R. It is stated that deceased sustained injuries on neck and back and in the postmortem report injuries are stated differently. Applicant No,2 (Damsaz) in Application No,219 of 2011 is stated to be armed with Repeater. No pallet injury has been reported. Not only that no empty of a Repeater has been recovered because mashirnama states that only two empties of pistol were recovered from the place of incident. There is no independent witness except the interested persons. Statements under section 161, Cr.P.C. Were recorded after more than one week.
4. Mr. Safdar Ali Bhutto, learned counsel for the comlianant iii F.I.R. No,86 of 2010 opposed the grant of bail and submitted that name of the applicant is stated in the F.I.R. Specific allegations which have been supported by the prosecution witnesses. He submitted that it is not a case of further enquiry An I it is settled law that at bail stage the Court is to make only tentative assessment.
Learned counsel relied upon Shahzaman v. The State, PLD 1994 SC 65 and Abdul Hayee v. The State, 1996 SCM R 555.
5. ,Mr. Amir Ahmed Narejo, learned State counsel adopted arguments of Mr.Safdar Ali Bhutto.
6. I have considered the submissions made by the learned counsel and have also gone through the record.
7. In Shah Zaman's case (supra) after observing that at the bail stage before recording of evidence in the trial Court, only tentative assessment is to be made for the purpose of deciding bail application and it is not permissible to go into details of the evidence one way or the other because that might prejudice the case of one party or the other. It was, in respect of ground of further enquiry, observed as under:- "Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. And acquitted or convicted for a lesser offence. In the present case the fact that in F.I.R. It is not pinpointed as to which accused had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence."
' In Abdul Hayee's case (supra) it was held that it is for the trial Court to weigh evidence and the Court considering bail application can only make tentative assessment. As far as question of further enquiry is concerned, I have noted above the observations of the honourable Supreme Court in Shah Zaman's case (supra) and the test, to me, it appears to have been, laid down by the Supreme Court is that it must be a question which has nexus with the result of the case and every hypothetical matter which can be imagined would not make at a case of further enquiry. In the.Present case, if the two F.I.Rs, are put in juxtaposition, in the first F.I.R. It is stated that it was Ali Gul, Mazhar, Damsaz, Shah Nawaz and one unidentified person; in the second F.I.R. It is stated that it was Mazhar, Imdad, Damsaz, Sajid and two unidentified persons. Thus one F.I.R. Says they were five and other F.I.R. Says they were six. In the first F.I.R., it is stated that Hakal was raised that Abid Hussain Shah would be killed and Abid Hussain Shah was fired at and was killed whereas in the second F.I.R. It was stated that they were running after Abid Hussain Shah. No such running is mentioned in the first F.I.R. In the second F.I.R. It is stated that the culprits started that Abid Hussain Shah was Karo; no such statement is alleged to have been made in the first F.I.R. Then in the second F.I.R. It is stated that Akhtar Ali raised Hakal; no such statement is made in the first F.I.R. In the second F.I.R. It is stated that they fired at Akhtar Ali whereas in the first F.I.R. It is stated that they fired at Abid Hussain Shah. Second F.I.R. Is silent about murder of Abid Hussain Shah. In the first F.I.R., complainant stated that while he was on his way to police station he came to know that Akhtar Ali has been murdered; in the second F.I.R. It is stated it was Syed Ashique Hussain Shah the complainant of first F.I.R. Who took dead body of Akhtar Ali to the Hospital. Time of the incident is same, place of the incident is same, but there are apparent contradiction in the two F.I.Rs,
8. It is alleged in the first F.I.R. That Damsaz also fired from his Repeater but no pallet injury is shown on the dead body and no empty of a Repeater has been shown to have been recovered in the mashirnama. These are the questions and contradictions which a tentative and even a superficial assessm ent brings out. It may be noticed that applicant Damsaz who is not alleged to have fired at all in F.I.R. No,87 of 2010 and is alleged to have fired from Repeater in F.I.R. No,86 of 2010 and is not stated to have fired and F.I.R. No,87 of 2010 has already been granted bail by the trial Court in F.I.R.
No,87 of 2010. I may repeat here Damsaz was alleged to have been present at the scene and at the same time in both the F.I.Rs, Did he fire or did he not is a question, which though begs an answer (and which answer can only be provided after recording evidence) creates doubt at this stage.
Both the F.I.Rs, say that applicant Mazhar fired, two empties have been recovered. First F.I.R. Says that he killed Abid Hussain Shah and indeed Abid Hussain Shah had two injuries on his body and other F.I.R. Says that he killed Akhtar Hussain. Which one is true, is yet to be seen.
9. Result of the above discussion is that these bail' applications are allowed. In Criminal. Bail Application No,213 of 2011, applicant is ordered to be admitted to bail upon executing P.R bond for a sum of Rs,300,000 with one surety in the like amount to the satisfaction of the trial Court and in Criminal Bail Application No,219 of 2011 applicants are ordered to be admitted to bail upon executing P.R bond for a sum of Rs,300,000 each with one surety each in the like amount to the satisfaction of the trial Court.