1. ' The facts leading to the present application for bail are thatapplicant/accused Ahmad Ali is facing trial under section Against Property (Enforcement of Hudood) Ordinance, section 392, P.P.C. .In Sessions Case No,651 of 1997, before learned Vth Additional Sessions Judge, Hyderabad, arising out of F.I.R No,34 of 1979 Police Station Fort, Hyderabad.
2. ' The brief facts of the prosecution case, as disclosed in the F.I.R. Lodged by Chaudhri Muhammad Akram Arain, are reproduced hereinbelow:-- "Complaint is that I am residing on the abovementioned address. My office namely Mehran Engro Industry is situated at Qazi Qayum Road. Yesterday on 29-6-1997 I was present in my office when one person who disclosed his name as Fayaz came in the office and enquired about the price of Gobel Plough and went away. Today i,e, 20-6-1997 at about 7-30 p.m. I, my son Rahsid and servant Shoukat son of Sher Muhammad were present in the office. My son and servant were sitting on chairs outside the office. The same person who had come yesterday, came alongwith two other persons and bought the Gobel Plough. I demanded amount, whereupon he took out the pistol and asked me that whatever cash is with me that should be handed over to them. On my resistance, he fired at me and bullet hit me on my left arm. On fire-arm report my servant Shoukat and my son Rashid came there. We all tried to apprehend all the three culprits, when one from them opened the fire and bullet striken on the wall due to which pieces of wall fallen on my servant Shoukat and he sustained injuries. We apprehended one culprit alongwith pistol and remaining culprits filed away. We enquired about the name from apprehended culprit, who disclosed his name Ahmed Ali son of Nazir. He gave the names of absconding culprits as Shoukat and Arshad. In the meanwhile mobile of Police Station Fort reached. The custody of apprehended accused alongwith pistol was handed over to A.S.I. Now I have come alongwith my brother Muhammad Azhar Arain at Police Station and complain that three accused with intent to commit offence entered in my office and on my resistance they have injured us. Out of three we have apprehended one accused and remaining two accused Shoukat and Arshad have succeeded in fleeing away. My servant Shoukat and my son Rahsid can identify after seeing them. Justice be done. We may be given letter for medical treatment."
3. ' The applicant/accused applied for the bail before the trial Court but the same was rejected by impugned order dated 21-2-1998.
4. ' Mr. Agha Khuda Bux Khan, learned counsel for the applicant/accused has contended that the case is outcome of enmity; that no specific role has been ascribed to applicant/accused; that applicant/accused is in jail since last 11 (eleven) months; that co-accused are granted bail by the trial Court, therefore, as per the rule of consistency he is entitled to bail. Moreover, offence is not punishable with death, imprisonment for life or ten years, hence it goes out of the prohibition contained under section 497 (2), Cr.P.C. He has placed reliance on 1986 SCM R 1862, 1988 M LD 156, 1988 M LD 292 and 518, 1980 SCM R 784, 1987 M LD 2217, 1985 SCM R 565, 1984 SCM R 206 and 128 and 1992 PCr.LJ 2182.
5. ' Mr. Tunio learned A.A.-G. For the State has contended that specific role has been ascribed to applicant/accused; that he was caught red-handed with crime weapon on the spot and empties were also recovered from the scene of offence; that no proof of previous enmity has been placed on record; that case of the co-accused who were granted bail by the trial Court is distinguishable from the case of present applicant/accused, therefore, rule of consistency will not apply and he is not entitled to bail.
6. ' I have heard and considered the arguments of the learned counsel fo the parties as well as perused the material on record and impugne order.
7. ' The applicant/accused was apprehended at the spot with the fire-arm and ammunition used by him in the commission of offence. The empties were secured from the scene of offence and the blood was also noticed there. The injuries on the person of victims are corroborated by medical certificates/ Moreover, the nature of injury is certified to be Itaf-i-Salla Hyat-i-udw which is punishable under section 336, P.P.C. And sentence for the same provided under law is ten years.
8. The specific role of being armed with fire-arm and causing injuries is ascribed to applicant/accused in the F.I.R. As well as in 161, Cr.P.C. Statements of prosecution witnesses. The case of co-accused Shoukat Ali and Mehboob Ali is distinguishable from the case of applicant/accused. The name of Mehboob Ali does not transpire in F.I.R. Nor it was disclosed immediately by the present applicant/accused, when he was apprehended at the spot and was enquired by complainant party about the names of his accomplices. So far co-accused Shoukat Ali is concerned, only evidence against him is that his name was disclosed by the present applicant/accused. No overt act whatsoever has been ascribed to him, nor any recovery etc. Was effected from him, so, also from co-accused Mehboob Ali, therefore, rule of consistency will not apply and on this aspect of matter he is not entitled to bail. In respect of enmity no documentary or any other material has been placed on record or pointed out, from which it could be deduced that case is outcome of ( enmity. The bare words of applicant/accused that case is outcome of enmity is not sufficient.
9. ' The argument that applicant/accused is in custody since last 11 months, therefore, he is entitled to bail is also without substance as no period of one year has expired. Thus, to derive the benefit of proviso (3) to section 497(1), Cr.P.C. Accused can move the Court after one year and that too only when delay is not caused by any act or omission of the accused or any one acting on his behalf, and that his act is also not covered by the proviso (4) to section 497(1), Cr.P.C.
10. ' The case-law, Gulsher and another v. The State 1986 SCM R 1862, Muhammad Yameen v. The State 1988 M LD 156, Muhammad Rafiq v. Ghulam Murtaza 1998 M LD 292, Jafar and others v. The State 1980 SCM R 784, ' Muhammad and 20 others v. The State 1987 M LD 2217, Muhammad Amir and 20 others v. The State 1985 SCM R 565, Muhammad Nazir v. The State 1984 SCM R 128 and '1992 PCr.LJ 2182, cited by the learned counsel for the applicant/accused is of no avail to him and it is distinguishable both on the facts as well as law and it is not applicable to the facts of the present case.
11. ' For all the reasons stated above, I see no merit in this bail application, I D which is dismissed.
12. ' The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any way and it will be free to conclude and arrive at its own findings after evidence in the case is recorded.