' AFTAB AHMED GORAR, J. Through this bail application, the applicant Abdul Rehman son of Sanwan Sabzoee seeks post-arrest bail, in Crime No.13 of 2010, registered with P.S B-Section Kandhkot, under sections 302, 337-H(2), 148, 149 P.P.C. His same plea has been declined by the trial Court, vide order dated 7-7-2012.
2. The allegation against the present applicant is that, on the fateful day, he along with co-accused Saddique alias Sado Khan and 21 others, duly armed with Kalashnikovs and guns respectively, came to place of occurrence; the applicant Abdul Rehman and co-accused Saddique alias Sado fired from Kalashnikovs at Muhammad Manthar, which hit at his left shoulder, while other co- accused Badal Khan and Fareed also made fires at Muhammad Manthar, which hit at thigh of his left leg. The motive of the incident as set out in the F.I.R. Is old murderous enmity between the parties.
3. Learned counsel for the applicant contended that F.I.R. Is delayed for ten hours, without furnishing plausible explanation by the complainant. Learned counsel next contended that medical evidence in consistent with the ocular testimony; as according to contents of F.I.R. The applicant and co- accused Saddique alias Sado fired from Kalashnikovs at Muhammad Manthar, which hit at his left shoulder, while as per postmortem report of deceased, he has only single injury on his shoulder and this point creates doubt in the case of prosecution in respect of involvement of the applicant.
Learned counsel further contended that co-accused Badal has been granted bail by trial Court, though he and co-accused Fareed have also been assigned role of making fire upon deceased at his left thigh. Learned counsel further contended that co-accused Mir Muhammad, Gajjan, Amanullah and Ali Murad were let off by the police during course of investigation and their names have been placed in Column No.2 of the challan sheet and in this way the Investigating Agency has not believed the version of the complainant. Learned counsel further submitted that applicant has been challaned in this case by showing him to be Abdul Rehman son of Sanwan, resident of Durrani Mahar, but actually name of present applicant is Behram son of Sanwal, resident of village Muhammad Nawaz Mahar, which is evident from CNICs: of the applicant and his father. Learned counsel lastly contended that the complainant and prosecution witnesses are not appearing before the trial Court for recording their evidence, though the trial Court has issued coercive process against them, i.e. B.W and the N.B.Ws. Further the trial Court has also got published a notice in daily newspaper "Kawish" for appearance of the complainant and his witnesses, even then they have not turned to record their evidence and the applicant is rotting in jail since long without any progress in the case. Learned counsel in support of this contention relied upon case of Mumtaz alias Kukar v. The State (2009 M LD 1111 Karachi).
4. On the other hand learned State Counsel opposed grand of bail to the applicant, on the ground that his name transpires in the F.I.R. With specific role of making fire at deceased, and he has remained fugitive from law last for more than one year.
5. Heard learned counsel for the parties and perused the material available on record. The name of the, applicant in the case in hand has been shown as Abdul Rehman son of Sanwan; however as per his CNIC his name is Behram son of Sanwal. Learned counsel for the applicant has produced on record true copy of bail order dated 28-2-2011, passed by trial Court granting bail to co-accused Badal Khan. The co-accused Badal Khan has been assigned the role of making fire upon deceased, and as per opinion of the medical officer all the injuries sustained by the deceased are sufficient to cause death in ordinary course of nature, therefore, in the above-stated position, rule of consistency will apply to the case of the present applicant. Furthermore the complainant and his witnesses are not coming forward to record their evidence before the trial Court and the applicant is rotting in jail since more than a year, though the trial Court has taken coercive steps for procuring their evidence, which includes issuance of Bailable Warrants of arrest, Non-Bailable Warrants of arrest and the notice published in wide circulated newspaper. This Court had also ordered issuance of notice to the complainant, which was returned by the S.H.O. Concerned with endorsement that the complainant has shifted away to some unknown place and in support of his such statement he has produced statements of Nekmards of locality, who have confirmed such fact.
6. Since it has come on record of the trial Court that the complainant and his witnesses have shifted away to some unknown place and their present whereabouts are not known, hence in these circumstances, I agree with contention of learned counsel for applicant that there is no possibility of conclusion of trial in near future. Furthermore, co-accused Badal Khan having alleged similar role of making fire at deceased has been granted bail by trial Court, therefore, under the rule of consistency present applicant also deserves same treatment and concession at this stage. The contention of learned counsel that the present applicant has been wrongly been challaned in the present case by wrong name also carries some weight. In view of the above-stated position, the applicant has been able to make out a case for grant of bail; consequently, the bail application stands allowed and the applicant Abdul Rehman son of Sanwan Sabzoee is granted bail on his furnishing solvent surety in the sum of Rs.300,000 (Three hundred thousands) and P.R bond in the like amount to the satisfaction of learned trial Court.
7. However, the prosecution will be at liberty to move for cancellation of bail of the applicant to the trial Court, if the complainant and his witnesses come forward and record their evidence and identify the present applicant to be the same accused who has been nominated in the F.I.R., which shall be decided by the trial Court on its merits. According to law.