ABDUL RASOOL MEMON, J.---Through this common Order I wovid like to dispose of above three bail applications as all are out come of one and same order dated 17.4.2014, passed by the learned Sessions Judge, Kotri whereby bail application of applicants Ali Sher and Khuda Bux alias Khudoo for post arrest bail and application of applicant Asif for pre arrest bail, filed in case Crime No. No.22 of 2014 P.S. Jamshoro under section 396, 34, P.P.C. Were rejected.
2. On 07.02.2014 complainant Sikander Ali resident of village Sathi Khan Bugti near Shahpur Chakar lodged FIR alleging therein that on 05.02.2014 he came to meet his maternal nephew Noor Ahmed (studying in Sindh University) at International Hostel, who brought him along with friend Sajjad Ali at Jamshoro Railway crossing for taking meals. After taking dinner they on motorcycle went to drop complainant at Super Highway stop, on way at about 8.00 p.m. Three persons with open faces on motorcycle 125 crossed them and jammed their motorcycle, who stopped ahead of them, tried to rob their motorcycle but complainant party stopped ahead of them, tried to rob their motorcycle but complainant party resisted, on which one of the accused opened fire upon Noor Ahmed, who sustaining fire arm injury fell down. Then accused fled away towards university stop. The accused persons were seen properly on the lights of vehicles. The motorcycle of accused had no registration number but its plate contained words "GIA Bhutto, GIA, MALIK and BIROHI". The injured was shifted to LUMs hospital Jamshoro where from he was referred to Agha Khan University, Karachi where he succumbed to his injuries on 06.2.2014. After postmortem examination and burial of dead body complainant lodged FIR against unknown accused.
3. During investigation on 12.2.2014 applicant Ali Sher was arrested with motorcycle used in the crime and his identification parade was conducted on 13.2.2014 wherein accused was properly identified with role played by him. The further statement of the complainant was also recorded on 24.2.2014. He disclosed the names of Asif and Khuda Bux @ Khudo as co-accused.
4. The learned counsel for the applicant Ali Sher argued that he was arrested on 8.2.2014 from Jamshoro Phatak Bus Stand and motorcycle was foisted upon him such news was published in daily Kawish dated 8.2.2014 and that Abid Ali the brother of the applicant Ali Sher moved an application to DIG Hyderabad regarding illegal arrest/confinement of Ali Sher; that at time of incident the applicant/accused brought wife of his brother namely Maryam to hospital for treatment in, LUMS Hyderabad in causality on 5.2.2014 and the record of C.C. Video show his presence at the hospital at the same time; that due to political enmity present applicant has been falsely implicated; that FIR is delayed by two days and no features or descriptions or role to each accused is assigned therein; that per FIR deceased received one fire arm injury and it is yet to be determined as to who fired at deceased; that in identification parade direct role has been assigned to the present applicant which is contrary to the contents of FIR; that the dummies for identification test are related to the deceased or are the police staff, which shows mala fide on the part of I.O., who was directed to produce the dummies therefore, the identification test loses its evidentiary value. In support of his contention learned counsel for the applicant Ali Sher has placed reliance on the case reported as Ajmal Khan v. Liaquat Hayat and another (PLD 1998 Supreme Court 97), Abdul Hameed v. The State (2011 YLR 1156), Qudratullah v. The State and another (2011 MLD 403), Roshan Din and another v. The State and another (2002 MLD 1890), Syed Abdul Hameed v. Syed Boo All Shah Zaidi (1999 MLD 2989), Waqar Shah v. The State (2012 PCr.LJ 866), Irshad v.
The State (2007 MLD 881), Muhammad Ashraf v. The State (2007 MLD 882), Allah Ditto and another v. The State (2011 PCr.LJ 485) and Arif Hashwani and 3 others v. Sadaruddin Hashwani and 3 others (PLD 2007 Karachi 448).
5. Learned counsel for the applicant Asif and Khuda Bux alias Khudoo urges that further statement of the complainant was recorded after 19 days without disclosing the source of information; no role for the causing any injury is specifically assigned to the present applicants. Therefore, vicarious liability and common intention is also to be proved at the trial; that no explanation is available on record for recording further statement after such long delay; that no recovery of any sort has been effected from the present applicant, therefore, applicant Asif has made out a case for confirmation of bail while co-accused Khuda Bux alias Khudoo is entitled for grant of post arrest bail. In support of his contention he has placed reliance on the follovving cases: Naeem Akthar v. The State (1996 SCMR 511), Muhammad Mumtaz and 2 others v. The State (1996 SCMR 512), Mst. Mumtaz Bibi and others v. The State and another (2011 SCMR 355), Syed Sabir Hussain Shah v. Government of the Punjab and others, Lal Muhammad alias Laloo and another v. The State (2014 MLD 1183), Hail Muhammad Adeel and 8 others v. Cantonment Board, Peshawar through the Cantonment Executive Officer, Peshawar Cantt. And 3 others (2014 MLD 1186), Bilal v. The State and others (2014 MLD 1223), Sajjad Hussain Mukhi v. The State through A. G. Sindh and others (2014 MLD 1226), Itfan alias Fani v. The State and others (2014 MLD 1502), Irs had v. The State (2007 MLD 88), Nooruddin and another v. The State (2005 MLD 1267), Bakhat All v. The State (2005 MLD 1272 [Lahore]), Muhammad Ashraf and another v. The State (2011 PCr.LJ 918), Qadir Yar alias Soni v.
Additional Sessions Judge, Chiniot and 2 others (2011 PCr.LJ 920) and Abdul Harmed v, The State (2011 YLR 1156).
6. Learned DPG duly assisted by Mr. Hameedullah, learned counsel for the complainant has argued that applicant Ali Sher was apprehended with motorcycle used in the commission of alleged offence. The applicant/accused Ali Sher has been identified by the complainant before Magistrate and also witness Sajad who has assigned role of firing. The complainant has also implicated accused Asif and Khuda Bux alias Khudoo in his further statement. Mere non-mentioning the source through whom the complainant came to know does not make the case of prosecution doubtful. Further plea of alibi raised by accused Ali Sher requires judicial scrutiny at trial and cannot be considered at bail stage so also video cassettes or CD as well as publication if any. He prayed for rejection of applications. In support of his contention he has placed reliance on the cases reported as Akhtiar All Khan v. The State and another (2010 PCr.LJ 1386), Muhammad Tufail v. The State (2010 PCr.L.1 1389), Amir Ali v. The State (2007 MLD 6051, Muhammad Hassan v. The State (PLD 2004 Karachi 520), Amir v. The State (2007 MLD 1749), Rashid v. The State (2010 PCr.LJ 337), Muhammad Nasir lqbal v. The State and another (2012 PCr.LJ 804), Shahid v. The State (2004 SCMR 1018), Abdul Ghafoor and another v. The State (2000 PCr.LJ 331), Qurban Ali and another v. The State (PLD 2014 Sindh 538), Amin Baz v. The State (2013 YLR 891) and Nazar Hussain and another v. The State (2012 PCr.LJ 345).
7. Heard arguments and perused the record.
8. Of course accused are not nominated in FIR but the complainant Sikandar in clear terms has stated that he and witness Sajjad can identify the accused as they have seen him while making firing upon the deceased: it has come on record that the recovery of the alleged motorcycle used in crime was made from the applicant Ali Sher who was arrested on 12.2.2014 and produced for identification parade on next day of his arrest wherein he was properly identified by complainant and eyewitness Sajjad with specific role of causing straight fire upon deceased which proved fatal thus there were sufficient and .Reasonable grounds to believe his involvement in the case. The plea of alibi raised by applicant Ali Sher as well as publication in newspaper and CD video are concerned, its authenticity is always subject to proof at trial. From facts of case sections 398 and 302, P.P.C. Are attracted, which carries capital punishment and thus falls within prohibitory clause of section 497, Cr.P.C. With profound respect the citations relied upon by the learned counsel for applicant All Sher are distinguishable from the facts and circumstances of this case.
9. So far case of applicants Khdua Bux alias Khudoo and Asif is concerned, they are involved in the case after 19 days of incident in further statement of complainant showing no source. Further these applicants are not assigned any specific role in the case as such their case requires further inquiry.
Consequently, applicant Khuda Bux is admitted to bail subject to furnishing solvent surety in the sum of Rupees Three Lacs and PR bond in the like amount to the satisfaction of trial court. The interim bail before arrest already granted to applicant Asif is hereby confirmed on same terms and conditions while bail application of applicant Ali Sher is rejected.
With the above observation all the applications stands disposed of.