1. ' ANWAR ZAHEER JAMALI, J. The applicant Sikandar son of Moula Bux has moved this bail application in Crime No,75 of 1998 Police Station Moro wherein he has been charged for an offence under sections 302, 324, Q.D.A, 147, 148, 141, 114, 34, P.P.C. The case has been challaned before the Special Judge S.T.A Naushahro Feroze.
2. ' The applicant is in custody since 25-8-1998. A bail application moved by him before the learned trial Court was dismissed on 23-9-1998.
3. ' Brief facts as disclosed in the F.I.R. Are that one Ghulam Mustafa son of Muhammad Siddique Kalhoro on 13-8-1998 at 11-25 a.m lodged F.I.R. That he owns a shop of electrician at Bandhi Road Moro town where his son Adam aged 16 years used to work with him. A month before the incident Allah Rakhio Zardari's daughter had gone out of her house of her own will and in this regard Allah Rakhio and his caste fellows had suspected that Kamal Ahmed son of Meharuddin Kalhoro was involved. Thereafter Meharuddin and other persons had asked Allah Rakhio to arrange Jarga but they had refused and said that they will take revenge from Kalahoras. On 13-8-1998 at 11-00 a.m when the complainant, his son Adam and brother Ghulam Farid were at their shop and his cousin Younis Kalahoro having his cabin on the other side of the road was present there, Sikandar son of Moula Bux while driving Double Cabin Datsun of his father reached in front of his shop and persons Sohuo son of Murad Zardari with Kiashnikov, Sarwar son of Abdul Karim Zardari with pistol, Din Mohammed son of Bhooro Zardari with pistol, Anwar son of Ilaji Gouro Zardari with Klashnikov, Sain Rakhio son of Allah Rakhio Zardari with Klashnikov, Ghulam Qadir alias Wahrro son cf Melro Zardari with pistol and one unknown person, who will be identified on seeing, were boarding on the back side of the Datsun, Moula Bux son of Datto Zardar, who was sitting on front side of this Datsun, instigated them by saying loudly that they are Kalhoras and relatives of Meharuddin and should not be spared. Thereupon accused Sohuo opened direct fire with his Klashnikov at Adam with intention to commit murder which hit him over his left eye and he while crying fell down. Accused Anwar opened direct fire with his Klashnikov at Adam which hit on his right leg. Accused Sam Rakhio opened direct fire with Klashnikov at Adam which hit him on his forehead while other accused persons opened fires at the complainant party with intention to commit their murder.
4. Thereafter the accused persons along with their weapons went away towards eastern side in the Double Cabin Datsun. Adam succumbed to such injuries' and complaint was lodged that accused persons in collusion with each other and at the instigation of Moula Bux, committed murder of Adam due to their grudge with Meharuddin Kalhoro.
5. ' Learned counsel for the applicant Sikandar has argued before us that the present applicant was neither armed with any weapon nor has played any role in the commission of the crime but he has been falsely implicated by the complainant party due to enmity. Learned counsel further contended that the father of the present applicant Moula Bux has also been implicated in this crime on the allegation that he had instigated other accused persons for killing the complainant party, but said Moula Bux son of Datto Zardari has already been released on bail by the trial Court vide its order, dated 7th September, 1998, on the grounds that he was empty handed and had only instigated others accused persons. The learned counsel therefore submitted that the present applicant, who was also empty handed and has not participated in the commission of this crime even to the extent of instigation, has much better case for grant of bail on the principle of consistency, but the trial Court has wrongly refused. Learned counsel lastly contended that the applicant is in custody since 25-8-1998, whole investigation of this crime has been completed by the police and the case has already been challaned before the trial Court but even there has been no recovery of Double Cabin Datsun, which was allegedly used by the applicant in the commission of crime which makes the whole case of the prosecution doubtful and of further enquiry. In support of his contention the learned counsel has placed reliance on the following case-law:
(1) Muhammad Naseem alias Naseemo v. The State 1996, PCr.LJ 1302)
(2) Muhammad v. The Sate 1998 SCM R 454, Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125,
(3) Bulando v. The State 1998, PCr.LJ 1669.
6. ' On the other hand Mr. Zawar Hussain Jaffri the learned Additional Advocate-General has strongly opposed the grant of this bail application and submitted that this is a day time incident, F.I.R. Was promptly lodged by the complainant party wherein the name of the present applicant has been disclosed by them, that he was driving the Double Cabin Datsun carrying the accused persons to the place of incident. The learned Additional Advocate-General further submitted that prosecution witnesses Farid and Younis who are eye-witnesses of the incident have fully supported the case of prosecution in their statement under 161, Cr.P.C, as well as in their statement under section 164, Cr.P.C. Recorded before the Magistrate. The applicant had participated in the commission of the crime with common intention and therefore he is not entitled for the concession of bail. The learned Additional Advocate-General replying to the arguments of the applicant's side further submitted that accused Moula Bux son of Ditto Zardari was granted bail by the trial Court on the ground of his old age and illness, therefore the same view cannot be followed in the case of applicant on the principle of consistency. He further submitted that principle of consistency in itself is no ground for grant of bail unless a case on merits is made out for grant of bail. The learned Additional Advocate-General has placed his reliance on the following case-law:
(1) Riaz Rashid v. The State 1988 SCM R 281,
(2) Muhammad Azam v. The State PLD 1988 SC 84,
(3) Qamar Bhugio v. The State 1993 PCr.LJ 2135.
7. ' Mr. Abdul Qadir Abro representing the complainant party while advancing his arguments submitted that from the contents of the F.I.R. Common intention of the applicant in the commission of the crime is quite clear, therefore he is not entitled for the concession of bail as all the accused are charged for an offence which provides capital punishment and falls within the prohibitory clause of section 497, Cr.P.C. The learned counsel has placed his reliance on the case-law reported as Abdul Hayee and 2 others v. The State 1996 SCM R 555, Dhani Bux and others v. The State 1989 SCM R 239 and submitted that this bail application merits dismissal.
8. ' We have considered the arguments advanced before us and gone through the case record.
9. ' Coming to the contention of learned counsel for the applicant that applicant is entitled for bail on the rule of consistency. It may be observed that though in the instant case trial Court while granting bail to co-accused Moula Bux has also taken into consideration the fact that he was empty handed and was only charged with instigation, but the question of his old age was also taken on to consideration thus the rule of consistency will not be attracted here. Even otherwise as held in the case of Mohammed Azam v. The State PLD 1988 SC 84, unless on merits case justifies grant of bail, same will not be granted. Merely by following the principle of consistency. Further in the case of Qamar Bhugio v. The State 1993 PCr.LJ 2135 it has been held that rule of consistency is not an absolute and inflexible rule, unless a case for bail on merits is made out, the same cannot be pressed into service for grant of bail to a criminal otherwise not entitled for bail.
10. ' Reverting to the facts of this case, it is clear that the applicant, who is not shown to be armed with any weapon was driving Double Cabin Datsun of his father, wherein his father Moula Bux was sitting on front side while the other accused were sitting on the back side, during the course of this occurrence, except this, he has been assigned no other overt act. Further after investigation case has also been challaned, but even that Datsun which was allegedly used by the applicant in the commission of the crime has not been recovered as yet. In the above circumstances when the accused was empty handed, he has not been attributed any overt act in the commission of crime except driving a vehicle which has not been recovered, we are of the view that the question of common intention at this stage remains wide open and needs further enquiry, and the applicant is thus entitled for bail.
11. ' In the case of Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125, in a case under sections 302, 148, 149, 324, 337-A(ii), question of common intention was examined by the Honourable Supreme Court and the accused, for whom it was alleged that they were armed with deadly weapons and also caused injuries to the prosecution witnesses during the commission of crime, bail was granted to them on the ground that whether these accused during the occurrence shared common intention needed further enquiry. In the case of Muhammad v. The State 1998 SCM R 454 which was also a case under sections 302, 148, 149 bail was granted to a accused, who had allegedly made ineffective firing during the occurrence, on the ground that his case needed further enquiry.
12. For the foregoing reasons we had granted this bail application by our short order, dated 15-10-1998.