1. ' SHAHID ANWAR BAJWA, J.--F.I.R. No, 466 of 2009 was recorded at P.S., Ghotki on 18-9-2009 at 1600 hours for an incident alleged to have taken place nine hours earlier of the same day. Complainant stated that deceased Muhammad Haroon was his cousin and deceased Akbar was his relative and both of them were working as Security Guards at a Sugar Mill in Ghotki. On the fateful morning, they i.e, Haroon and Akbar left village on a motorcycle and Hashim, Rafique, Ali Ahmed left village on separate motorcycles. Muhammad Haroon and Akbar were ahead of them. On the way 16 persons emerged from a thatched hut. A rocket launcher was fired and the complainant and his companions stopped. The persons who emerged from but tried to snatch motorcycle from Muhammad Haroon and Akbar. It is alleged that applicant No,2 was armed with a rocket launcher and applicant No, 1 was armed with a K.K. Muhammad Haroon was fired at by (a) Muhammad Siddique hitting him on the back, (b) Nizamuddin hitting him on right arm, (c) applicant No, 1 hitting him on right hand, (d) Ali Gohar hitting him on right side, of calf of the leg, (e) Rafique hitting him on his left arm, (f) Allah Diwayo hitting his left eye and (h) Wakeel Ahmed fired from his gun hitting his right eye. Deceased Akbar was fired at by (a) Bashir on his neck, (b) Soomar on his chest, (c)
2. Karam at his back (d) Shah Jahan at the left side of chest, (e) Hameed at his calf of leg and (f)
3. Allah Diwayo at his calf of leg. Both Akbar and Muhammad Haroon fell down and died. After their dead bodies were brought to hospital, F.I.R. Was registered.
4. ' Learned counsel for the applicants submitted that the applicants are innocent and have been falsely implicated in a patently false case. Learned counsel submitted that F.I.R. Has been lodged after nine hours and it is result of deliberations. He submitted that statements under section 161, Cr.P.C. Were recorded after nine days of the incident. Learned counsel submitted that as far as accused Imdad is concerned, no specific injury is alleged against him and as far as applicant Younis is concerned, the only injury alleged against him is that he caused injury to the right hand, which is not cause of death. Learned counsel submitted that re-inquiry was ordered and as a result of re-inquiry, except present two applicants, Nizamuddin and Hameed other co-accused persons have been let off and this created doubt. It is further stated in the inquiry that there was documentary record that there was tribal dispute between both the parties over KaroKari. Re- inquiry further came to the conclusion that snatching of motorcycle could not be proved and same was the position regarding fire by rocket launcher, which appears to have been arranged only to send up the case to an Anti-Terrorism Court. Learned counsel submitted that co-accused Muhammad Sadique has been granted bail by a Single Judge of this Court and, therefore, on the principle of consistency, the applicants are also entitled to bail. Learned counsel relied upon Abdul Salam v. The State, 1980 SCM R 142 and Nooruddin and another v. The State, 2005 M LD 1267.
5. ' Learned. A.P.-G. Submitted that as far as case of Muhammad Sadique, who has been granted bail by a Single Judge of this Court, is concerned, role of Muhammad Sadique is materially different from the role of present applicants. He submitted that the applicants have been assigned active specific role in the F.I.R. And from the scene of Vardat, one empty of rocket launcher 18 empties of KK and 9 empties of .12 bore gun have been recovered. He further submitted that re-investigation has proved involvement of the present applicants.
6. ' I have considered the submissions made by the learned counsel and have also gone through the record.
7. ' In Abdul Salam's case (supra) it was held that Courts are to maintain equality of treatment between persons placed in similar situation and similar circumstances. In Nooruddin's case (supra) facts of the case were that the complainant went to Police Station to obtain letter. The letter was given and two days later, complainant came to the Police Station and lodged F.I.R.
8. Stating that one of the injured had died subsequently and stated that two P.Ws. Were sleeping in the house during the fateful night and they woke up on barking of dogs. They saw the applicants armed with. KK and five other persons armed with guns were taking away their cattle.Complainant and injured (subsequently-deceased) Habibullah grappled with the trespassers. It was then that Nooruddin fired from his KK and injured Habibullah and another co-accused fired at Nazar Muhammad. High Court observed that names of accused persons were not stated when the complainant appeared at Police Station for getting letter and when entry was made in Station diary and such names were given after two days. Statements of witnesses were recorded later and dying declaration of Habibullah was not recorded.
9. ' In B.A No, 666 of 2010, bail has been allowed to applicant Mohammad Siddique, vide order dated 9-9-2010 and the reasons recorded by Single Judge of this Court are as under:-- "The fact which has come on record that there is delay of 9 hours in lodging of the F.I.R.; and before lodging of the F.I.R., the investigation was partly conducted by Police including the post mortem notes, which may have received in the hands of Police before lodging of the F.I.R. Which may be with full consultation. There is no explanation on record that why 161 Cr.P.C. Statements were recorded after lapse of 9 days. Therefore, it is yet to be determined whether the F.I.R. Which was lodged after post mortem and conducting of investigation will have any sanctity. Moreover, the matter was probed through well reputed and higher ranking Police Officers namely Mr. Sanaullah Abbasi, DIGP, Larkana, who nominated the Team of Superintendent of Police (Investigation) and DSP Headquarter, Shikarpur, who after conducting the thorough investigation has concluded that the present applicant and some other persons involved in the F.I.R. Are innocent and in view of such report and on the admission of learned A.P.-G. That which opinion is to be given weight or preferred it is to be decided by the trial Court after adducing evidence; and in view of such position and the case-law cited at the bar, I am of the opinion that this is a fit case of further probe and inquiry and till such time, the applicant is entitled for the release on bail".
10. Learned A.P.-G. Submitted that role of Muhammad Sadique is different from the role of present applicant. As far as applicant Younis is concerned, his role, as stated in the F.I.R., is that he fired at deceased Muhammad Haroon with KK which hit him at his right hand. Role of Muhammad Sadique, stated in the F.I.R., is that he fired from KK upon Muhammad Haroon, which hit him at his back; therefore, role attributed to Younis is much less severe than the role attributed to Muhammad Sadique and, therefore, on the principle of consistency, applicant No, 1 is entitled to bail. As far as applicant No, 2 is concerned, he is alleged to be armed with a rocket launcher and 'is alleged to have fired from the rocket launcher. Now there are three pieces which require consideration. First, no rocket launcher has been recovered so far. Second, A.P.-G. Argued that an empty of rocket launcher was recovered from the place of Vardat and; third, according to re-investigation report, firing of rocket launcher was not proved and rocket launcher had been arranged by the complainant to bring the case within the purview of Anti-Terrorism Court. This makes question relating to role of Imdad a subject of further inquiry.
11. Consequently, this bail application is allowed and the applicants are ordered to be admitted to bail upon their executing P.R. Bonds in the s um of Rs,3,00,000 (Three Lac) each with one surety each in the like amount, to the satisfaction of the trial Court.