SHAHNAWAZ TARIQ, J.---Through captioned post-arrest bail application, applicant Anwar Ali has impugned order dated 01.12.2014, whereby his earlier bail application was declined by the Court of Additional Sessions Judge, Moro.
2. Relevant facts narrated in FIR are that on 01.07.2014, complainant along with his brother Habibullah left for their land by riding motorcycle and near Thul Canal, accused Mumtaz armed with Kalashnikov, Haji Gullan with .222 rifle, Anwar alias Anu with repeater, Hameed and Ashraf with pistols, along with two unknown armed persons, intercepted them. Accused Haji Gullan Dahiri and Mumtaz Dahiri made fires from Kalashnikov and rifle 222, which hit Habibullah who succumbed to his injury at the spot, hence instant FIR.
3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated by complainant in instant crime with ulterior motive as parties are already disputed with each other; that complainant party is involved in series of FIRs viz. 22/2013, 111/2012, 86/2012 and 25/2013 lodged by them against them; that co-accused Hameed and Ashraf have already been granted bail by learned trial Court and case of present applicant is on same footing, hence he is entitled for concession of bail under the rule of consistency; that injury sustained by the deceased was caused by Kalashnikov and not by repeater; that there are general allegations leveled against applicant which requires further considerations. Learned Counsel relied upon the case of Rehmatullah v. Fazal Baqi and another (1998 SCM R 455), Nisar Ahmed v. The State and others (2014 SCM R 27), Mohammad lqbal v. The State (2011 SCM R 1943), Shahid v. The State (1994 SCM R 393) and Mohammad Haroon and another v. The State (1994 SCM R 2161).
4. While controverting the above submissions, learned Counsel for complainant vehemently contended that name of applicant is mentioned in the FIR, while he was armed with repeater and after his arrest, he himself produced repeater before Investigating Officer; that empties of 'repeater recovered from the spot, were sent for chemical examination and as per Ballistic Expert report, same were matched with said repeater, hence he is not entitled for grant of bail. Learned Counsel relied upon 2011 SCM R 1606.
5. Learned AAG considering the material as well medical report of deceased, extended no objection for grant of bail.
6. Heard learned Counsel for the parties supported with case law and examined the material available on record properly.
7. Perusal of record reflects that parties are inimical with each other and factum of animosity is reflected from the averments of FIR. There is delay of more than 12 hours in the lodgment of FIR, for which no plausible explanation has been furnished in FIR by the complainant.
8. In the case of Nisar Ahmed v. The State and others (2014 SCM R 27), the honourable Supreme Court has observed as follows:- "Accused and co-accused allegedly entered complainant's house, where after co-accused shot at and killed complainant's daughter/deceased. Prima facie, accused was not directly connected with the motive part of the prosecution story. Accused was not alleged to have fired at the deceased or any prosecution witness at the time of occurrence. Even the motorcycle on which the accused allegedly came at the spot of occurrence did not belong to him, and according to Investigating Officer it was owned by a co-accused. Question of accused's guilt required further inquiry. Accused was released on bail accordingly."
In the case of Muhammad v. The State and others (1998 SCM R 454), the honourable Supreme Court has observed as follows:- "Accused had allegedly made an ineffective firing and no injury was attributed to him to the deceased, during the occurrence. Case against accused, therefore, needed further inquiry. Petition for leave to appeal was converted into appeal and accused admitted to bail accordingly."
In the case of Mohammad Igbal and miters v. The State (2011 SCM R 1943), the honourable Supreme Court has observed as follows:- "Qatl-i-amd, criminal assault on woman, trespassing, criminal intimidation, Ghayr-Jaifah.
Hashimah, Shajjah-i-Khafifah, Shajjah-i-Mudihah, other hurts, attempt to qatl-i-amd and rioting, determination of individual liability. Case was that of free fight entailing individual liability and no injury was attributed to any accused. If no specific injury was attributed to any of the accused persons then it way to be seen as to what individual liability the accused could be saddled with.
Investigation of the case had already been finalized and Challan was submitted thus physical custody of accused persons was not required for the purposes of investigation. Case against accused persons called for further inquiry into their guilt within the purview of S. 497(2), Cr. P. C.
Bail was allowed."
In the case of Shahid v. The. State (1994 SCM R 393), the honourable Supreme Court has observed as follows:- "Accused was attributed the role of getting hold of deceased when his co-accused was inflicting dagger blows on him. Another accused who had allegedly given kicks and fists blows to the deceased had been extended the concession of bail. Contentions that the accused on the principle of consistency was also entitled to bail and that it was yet to be determined whether the accused had facilitated the commission of the offence to attract S. 34, P.P.C. Making out a case for further enquiry, had substance. Petition for leave to appeal was converted into appeal and the same was allowed in circumstances and the accused was released on bail accordingly."
In the case of Mohammad Haroon and another v. The State (1994 SCM R 2161), the honourable Supreme Court has observed as follows:- "One accused was alleged to have raised a "Lalkara" and the other accused had allegedly held the deceased along with co-accused at the time of occurrence. Accused were not alleged to have caused any injury to any of the deceased. Petitions for leave to appeal were converted into appeals in circumstances and the same were allowed releasing the accused on bail."
9. Bare perusal of the impugned order emanates that learned trial Court had granted bail to co- accused Hameed and Ashraf to whom no specific role was assigned, while learned trial Court had differentiated the case of present applicant, which apparently reflects that Court was seemed to be influenced by the recovery of repeater from the possession of applicant, though mere recovery of repeater could not defeat the right of applicant for bail while his case is at par to the case of'co- accused to whom bail had already granted by the learned trial Court. Per allegations leveled by the complainant in FIR, accused Haji Gullan Dahiri and Mumtaz Dahiri made straightway fires of Kalashnikov and rifle-222 upon the deceased, and deceased received only single bullet injury.
Neither any pallet was recovered from the corpse during post-mortem nor deceased sustained any pellet injury, and medical report issued by Medico-Legal Officer also confirms such fact. There are general allegations against remaining accused including present applicant and no specific injury was attributed to the applicant, hence it would be seen as to what extent the individual liability applicant could be saddled with, and question of guilt of applicant for common intention is also yet to be determined by the trial Court after recording the evidence of the witnesses at trial.
Investigation of the case had already been finalized and Challan was submitted, thus physical custody of accused persons is not required for the purposes of investigation.
10. Considering the above circumstances and no objection extended by learned APG, applicant has succeeded to make out his case for grant of bail on the ground of further inquiry as contemplated in section 497(2), Cr.P.C. As well as under the rule of consistency. Consequently, applicant is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs,100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of trial Court.
11. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits.
Bail application stands disposed of in the above terms.