SALMAN HAMID, J.---From the events as mentioned in the F.I.R. It seems that proposal and counter proposal of marriage had been made by the complainant and the accused upon which the accused namely Umar became annoyed and in furtherance to such annoyance the accused along with co-accused Shahbaz, the present applicant, stalked Muhammad Siddique (the complainant), his wife and minor two years' daughter on the night of 21-8-2009, when they were returning to their house from a social event in the family at which time, the brother and brother in law of the complainant were also coming with them on their motorcycle. When all the above persons reached near the street of Shahbaz Colony, Dadu Moundar Nako, noticed in the head light of the Rikshaw, in which they were travelling, the present applicant and the co-accused Umar both armed with pistols and one unidentified person with them armed with repeater blocking the way and signaled with their weapons to stop. The Rikshaw became stationary and the applicant Shabaz and co-accused Umar fired from the back side of the Rikshaw with the result that the minor daughter died of bullet injury. The complainant, his brother and brother-in-law intervened whereafter the applicant and the co-accused Umer fled away.
2. Learned counsel for the applicant argued that the record would show that after investigation the co-accused Umer was let off and on such basis, he was also granted bail whereas, bail was refused to the applicant. It was argued that since there were material discrepancies in the narration as contained in the F.I.R. And that of the statement recorded under section 161, Cr.P.C. Of one Khalid Hussain son of Allah Warayo, the Rikshow driver, whereby it would become clear that there was no mention of the complainant that this fact alone was a good ground for bail as further inquiry was required. It was also argued that following the principle of consistency, the bail ought to have been granted to the present applicant as the co-accused was enlarged on bail. It was also argued that admittedly there was enmity between the complainant and the present applicant for the reason mentioned above and therefore the applicant was falsely implicated upon a concocted and made up complaint and that in lodging such complaint there was a delay of about one and a half hours. It was also argued that it is yet to be determined at trial as to from whose bullet the minor died and that even otherwise the present applicant is less than 18 years of age and therefore, his case falls under section 5(b) of Juvenile Justice System Ordinance, 2000 and further that there are inconsistencies of time of death if compared with the medical certificate and that the P. Ws. Are related with each other and with the complainant and therefore, the applicant was entitled for the bail. In support of his contentions, the learned counsel for the applicant relied upon SBLR 2006 (Sindh) 136, 2002 PCr.LJ 2034 (Lahore), 1987 PCr.LJ 1360 (Karachi), 1986 SCM R 1380 and 1985 PCr.LJ 1220.
3. Appearing on behalf of the State, the learned A.P.-G. Vehemently opposed the grant of the application and stated that the rule of consistency is not applicable in the present case and that the motive was patently clear, which cannot be ignored by this Court and that the minor died of firing of the applicant and that empties were also recovered from the place of incident and that even the medical evidence clearly implicates the present applicant in commission of the incident and that as far as the question of trial of case under section 5(b) of Juvenile Justice System Ordinance 2000 is concerned, it was argued that as per the certificate of age prepared by office of the Medical Superintendent, Civil Surgeon it clearly indicates that the present applicants 18 years of age, which age was determined by performing physical examination, radiological and general examination of the applicant, where after the Board constituted for determination of the age of the applicant, comprised of at least seven professional doctors determined his age as 18 years and therefore the case of the applicant falls outside the pale of above Ordinance.
4. Heard arguments.
5. From the above narration of events and perusal of the case file it becomes clear that the present applicant has been specifically named in the F.I.R. And commission of offence has been directly attributed with him and that the investigation that was conducted also fully goes against him. As far as the arguments of the leaned counsel for the applicant on the point of consistency is concerned, suffice to state that the case of the applicant does not fall into such category inasmuch as, the co-accused Umar was enlarged on bail when the court below found the case of further inquiry was made out inasmu ch as, that the co-accused was let off for want of sufficient evidence for the time being and that he also pleaded alibi inasmuch as, that on the date of incident he was not available there and was in fact available and was busy with first death anniversary of Shaheed Muhammad Panah Thaheem, the General Secretary of PPP Youth, Taluka Johi as he was the District President of PPP Youth Dadu District. As far as the point of section 5(b) of Juvenile Justice System Ordinance 2000 was concerned, the same in the light of production of certificate by the State Counsel showing the age of applicant as 18 years goes away and looking at the facts and circumstances of the case the enmity and motive was apparent with the result that a life of two years minor was lost. The question of joint firing in the wake of alibi in favour of co- accused is also of no assistance to the applicant at least at this stage of bail when evidence is to be looked tentatively and not deeply. There being sufficient evidence already available on the record of the file, the case of bail to the applicant has not been made out. The various case law cited by the learned counsel for the applicant are not of any assistance inasmuch as, that the case of Mehboob Ahmed v. The State and 2 others (2002 'PCr,LJ 2034), Muhammad Rafiq v. The State (1987 PCr.LJ 1360) and Nasir Ali v. The State (1985 PCr.LJ 1220) are not applicable, as in those cases bail was granted keeping in view the provision of Juvenile Justice System Ordinance 2000, which provisions are not available to the applicant. As far as the case of Muhammad Ramzan v.
Zafarullah and another (1986 SCM R 1380) is concerned, the bail was granted by the Honourable Supreme Court on the ground of consistency as in that case the bail was granted to the co- accused and the main accused applied for bail on the same ground as were available to the co- accused. However, in the present case the record would show that the bail to the co-accused was granted on altogether independent ground of alibi which ground is not available to the present applicant. Therefore, this case is of no assistance to the applicant. Coming to the case of Muhammad Sharif alias Abdul Rahim v. The State (SBLR 2006 (Sindh) 136), the accused therein was enlarged on bail, looking at the contradiction between the ocular and medical evidence, whereas in the present case there are no such discrepancies. Slight difference in time would not be of much significance and there was a possibility that because of the traumatized condition of the complainant correct and/or exact time was not mentioned by him and therefore no benefit could be extended to the applicant.
6. For the above reasons, the present application is dismissed.
Outcome of present bail application in no way influence the trial of the case which would be decided on its own merits.