1. ' The applicants are facing trial under sections 302, 326, 147, 148, 149, 504, P.P.C. Before the learned Sessions Judge, Thatta.
2. ' The brief facts giving rise to the present application are that on 10-71988, one Hussain son of Ishaq lodged a report at Police Station Jherruk District Thatta, inter alia alleging therein that on 9-7-1988, he, his Massat Bashir (deceased), Isma il, Karimdino, Uris and Hasan were holding Ketchehary in the house of Siddique brother-in-law of deceased Bashir, when at 12-30 midnight they heard knock at the iron gate of the house and there was call for Bashir also. Bashir had a licensed .7 mm rifle which he used to keep with him, due to enmity. Bashir told them to wait there, and he was going outside to see who were the persons calling him. He also carried his rifle with him. Abbas brother of deceased Bashir was sleeping on the roof of the house. As soon as Bashir opened the door and got down from staircase he was abused and kalashilikov was fired at him. On firing the complainant and other witnesses went near the door on which they were challenged by the culprits to stop there. They saw two persons with open faces out of which one had kilashinkov and other was armed with revolver. They could identify them. Along with above culprits they found Mamoon son of Ibrahim, Silu son of Balai, Suleman son of Haji Ibrahim, Ali Bux son of Soomar, and Soomar son of Aloo by caste Thenga, who were armed with hatchets. These persons had enmity with Bashir since long. They had told him and other witnesses on various occasions to advise Bashir else they would kill him. On torch light, they found that Bashir was lying on the ground and was bleeding. His licensed rifle was lying on the ground, was taken away by the culprits who were armed with revolver. Ismail maternal-uncle of Bashir on seeing Bashir lying on the ground and bleeding tried to go forward but the culprits fired at him repeatedly and thus he was injured and fell down on the ground. Due to fear, they did not come out. On noise Abbas brother of deceased got up but he was also fired at and he fell down. Thereafter, the culprits fired in the air and went on Katcha road behind the house towards protected Bund where suzukies and cars of culprits were parked. The cars were of white color. The culprits went in those vehicles towards Hyderabad. Thereafter the complainant and P.Ws. Went on the roof of the house and found Abbas lying injured. They brought him down. P.W. Ismail had also sustained injuries on his left leg. Bashir had sustained injuries on various parts of his body and was unconscious. They brought injured and Bashir to police station to lodge report. On reaching police station Bashir died. Thereafter F.I.R. Was lodged by the complainant.
3. ' After completing the investigation, the applicants were sent up along with the co-accused Ali Bux and Soomar, while accused Mamoo, Suleman and Silu were let off by police. The applicants moved an application for bail before the learned Sessions Judge, but the same was rejected vide order, dated 27th October, 1988.
4. ' It was contended by Mr. Azizullah K. Shaikh, learned counsel appearing for the applicants that the names of the applicants do not transpire in the F.1.R. Nor any description of unidentified culprits was given in the F.I.R. That there was no incriminating recovery from the applicants and the fire-arms have been recovered from co-accused Ali Bux and Soomar. It was further cortended that the police had found co-accused Mamoo, Silu and Suleman as innocent, and this fact goes a long way to show that the complainant had no respect for truth. That the applicants were working as police constables at Police Station Tando Adam and Husri respectively, and they were put to identification test through witnesses after long detention. It was further contended that witnesses have not stated at the time of identification test as to which of the two accused was armed with kalashinkov.
5. The evidence of identification test was further assailed on the ground that only 13 dummies were mixed with two applicants, and therefore, it was a case of further inquiry.
6. ' Mr. Abdul Ghafoor Mangi, learned AA.-G. Appearing for State has vehemently opposed the grant of bail to the applicants on the ground that the applicants were picked up by four eye-witnesses in the identification test which was held on the following day of their arrest. That the recovery of empties of Kalashnikov and revolver from Ward at clearly supports the prosecution case. That out of the four witnesses P.Ws. Ismail and Abbas were injured. That the incident was a recent incident having taken place in July, 1988 and the case has not yet proceeded and, therefore, the applicants were not entitled to bail at this stage. I have considered the contentions of the learned counsel. The F.I.R. Shows that there were in all seven culprits out of which five have been named, while the two were unidentified persons. However, it has been stated in the F.I.R. That complainant will be able to identify them. According to F.I.R. The five persons who have been named in the F.I.R. Were armed with hatchets, while two unidentified persons were armed with kalashinkov and revolver. They are said to have fired at the deceased Bashir and injured Abbas and Ismail. The applicants have been picked up in identification test, by as many as four witnesses out of whom two are injured.
7. According to Mr. Azizullah K. Shaikh, the applicants are police constable and were working at Police Station Tandoadam and Police Station Husri respectively. No enmity has been alleged. Nor there are circumstances to show that complainant and P.Ws. Had any reason to implicate the applicants falsely. The identification test was held immediately on the following day of the arrest of the applicants. The F.I.R. Shows that deceased had enmity with the co-accused and if complainant party wanted they could conveniently allege that two of the culprits named in the F.I.R. Were armed with fire-arms and they had fired at the deceased. But the allegations in the F.I.R. Are that they were armed with hatchets. Of course, three of the co-accused have been let off by the police while two of the co-accused have been released on bail because there was no allegation that they had caused any injury to the deceased or to the witnesses. The Mashirnama of arrest shows that the applicants were arrested on 1-8-1988, while identification test was held on 2-8-1988. The Mashirnama of identification test further shows that the applicants were mixed with fifteen dummies and they were picked up by complainant Hussain and P.Ws. Ismail Karim Dino, and Hassan. The Mashirnama further shows that the witnesses had disclosed at the time of identification test that the accused were the same whom they had seen at the Wardat.
8. ' In the case of Muhammad Sarwar v. The State 1982 SCMR 257 it was observed by their Lordships of the Supreme Court that:- "Simply because one of the accused was found innocent by the police during investigation, the co- accused cannot be given benefit of doubt and granted bail on this ground, especially when he was alleged to have fired at the deceased."
9. That the incident is heinous one in which one person has lost life and two were seriously wounded with fire-arms. The incident is recent incident, and the case has not yet proceeded. I am, therefore, of the considered view that no case for bail has been made out at this stage and the application is accordingly dismissed.
10. ' However, the applicants will be entitled to repeat their bail application before the trial Court after complainant and two eye-witnesses are examined.