1. ' Present applicants are seeking bail in Crime No,74 of 1999 registered with Police Station Rustam under section 337-H (ii) Q.D.O, 380, 457, 460 and 34, P.P.C. The bail application was moved before trial Court, but without success, hence this application.
2. ' Brief facts of the prosecution case as disclosed in F.I.R are that complainant lodged report on 3- 10-1999 at about 10-35 hours with Police Station, Rustam alleging therein that he is resident of village Bejlo and owns buffaloes. His house consisting upon two rooms, facing towards east, alongwith varandah and surrounded with wall of katcha bricks having entrance door from north.
3. The complainant tied his cattle in open space of his house with killas Din Muhammad son of Haji Haq Nawaz by Caste Suhendero resident of village Bajlo aged about 25/26 years and his nephew who is residing adjacent to his house. Last night as usual after feeding his cattle, and taking night meals, he went to sleep alongwith his family members, where bulbs were burning as well as in street. When at about 2-30 a.m night he woke up on the barking of dogs and on the noise, he saw 5 persons on the light of bulbs and identified to be Bachal son of Dodo, Nazar alias Nizamuddin son of Allah Rakhio armed with klashnikovs, both by Caste Kamalani Jotoi resident of village Shandino Kamalani Jatoi, Taluka Khanpur and three unidentified persons who were opened faces and saw them clearly on the light of bulbs and will identify them if shown, out of them one was armed with rifle, and two were armed with guns, were standing in the open space of his house. Out of them one person who was armed with rifle, untied his buffalo and stole away, on which he raised cries of thief thief on his cries Zahid son of Rahim Ali, Din Muhammad son of Haji Haq Nawaz and Abdul Rahim son of Muhammad Ayoob also came running there. Din Muhammad on his arrival grappled with accused Bachal, who was armed with klashnikov on which he gave hakals to his companions that he was captured by house owners, on which Nazroo Kamalani Jotoi returned back and tired from his K.K. Over Din Muhammad who was very close to him with intention to murder him and try to save co-accused Bachal from Din Muhammad. Such fire hit to Din Muhammad and accused Bachal who raised cries and fell down on the ground and the remaining accused taking away his buffalo by tiring in the air went away towards eastern side. The complainant party came there and saw that Din Muhammad sustained fire-arm injury on his head, who was crying and deceased accused Bachal sustained tire-arm injuries on his forehead, mouth and stomach, and was dead and kalashnikov was lying near to him alongwith bandolier. He then leaving the witnesses over the dead body of accused Bachal and brought the injured Din Muhammad to Civil Hospital, Shikarpur for immediate treatment, but on the way he died. He then left deceased Din Muhammad in mortuary leaving the witnesses there, went to police station and lodged the report.
4. ' Learned counsel for the applicant has submitted that the name of the applicant does not appear in the F.I.R. According to him, the further statement of the complainant under section 161, Cr.P.C. Has been recorded on 3-12-1999. No identification parade has been held of the present applicants. He has placed reliance on a case Mir Hazar Malik v. State reported in 1999 SCM R 1377, 1997 SCM R 462, 1994 PCr.LJ 508.
5. ' On the other hand Mr. Muhammad Iqbal Memon, Advocate for the State has submitted that the present applicants have been challaned under sections 337-H (ii) Q.D.O, 380, 457, 460 and 34, P.P.0 and two witnesses namely Zahid Hussain and Abdul Raheem have involved the present applicants in their 161, Cr.P.0 statements, which are said to have been recorded on 8-12-1999. He has further submitted that the 'section 460, P.P.0 has been applied which is punishable for ten years and has opposed to the grant of bail.
6. ' I have considered the arguments rendered by the learned counsel for the parties and have gone through the material available on the record.
7. ' As far as the law cited by Mr. Jai Jai Veshno is concerned, in a case of Mir Hazar Malik v. State reported in 1999 SCM R 1377 wherein the Honourable Supreme Court has granted bail to the accused who was challaned only under section 302, P.P.0 and originally his name did not transpire in the F.I.R and subsequently he was involved in the commission of the crime. In a case 1997 SCM R 462 the identification of the accused who was arrested not held and the bail was granted by the Honourable Supreme Court of Pakistan. In a case of Hussain Bux v. State reported in 1994 PCr.LJ 508 accused was put to Identification test after ten days of his arrest-Case of accused, therefore, fell within the purview of subsection (2) of section 497, Cr.P.0 calling for further enquiry. He was admitted to bail. As far as the authority reported in 1999 SCM R 1377 is concerned, the accused was not charged also with section 460, P.P.C. And the prosecution was relying on the extra-judicial confession allegedly given by the accused before the prosecution witnesses Abdul Rauf and Taj Muhammad and piece of evidence is extrajudicial commission has not relied upon. In the present case the additional statement of the present complainant has been recorded by the police on 3- 12-1999 wherein the complainant has implicated the present applicants who came to the house of the complainant alongwith his associates and no enmity has been suggested by the applicants in their bail application. When asked as to whether there is any enmity between the applicants and complainant party, the learned counsel for the applicants very readily replied that there is no enmity between the complainant party and the accused. As far as the identification is concerned, the name of the applicants have been given by the complainant in his additional statement. It is a case of lurking house trespass, section 460, P.P.0 has been applied and challan has been submitted under sections 337-1-1(ii), Q.D.O. 380, 457, 460 and 34, P.P.C. The section 460, P.P.C. Is reproduced as under: "460. Persons jointly concerned in lurking house-trespass or housebreaking by night punishable for qatl or hurt caused by one of them. If at the time of the committing of lurking house-trespass by night or house breaking by night any person guilty of such offence shall voluntarily cause or attempt to commit Qatl of/or hurt to any person every person jointly concerned in committing such lurking house-trespass by night or housebreaking by night shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of this Code."
8. ' As far as the other law cited by the learned counsel for the applicants is concerned i.e, distinguishable from the present case and so also the law reported in 1999 SCM R 1377. In the present case the applicants have gone alongwith co-accused at odd hours and the murder has taken place as one of the thieves has been murdered and dead body was found from the house of the complainant. In a case of Lal Muhammad v. State reported in 1990 SCM R 315 wherein the Honourable Supreme Court has refused the bail to the accused whose name was not mentioned in the F.I.R and only the evidence is available with the prosecution consists of confessional statement of co-accused---High Court, is not violating any reason while rejecting the bail application. Petition dismissed. In the present case, there are statements of two witnesses under section 154, Cr.P.0 recorded on 8-12-1999 and have implicated the present applicants. In the aforementioned authority of Honourable Supreme Court the bail has been refused to the accused whose name did not appear in the F.I.R. And the murder had taken place in the house of the complainant and he was refused bail. Admittedly the section 460, P.P.0 is punishable with ten years and the learned counsel for the applicants has made relentless efforts to remove the case of the applicants from section 460, P.P.C. But without success. Reference can be made of a case reported in 1998 SCM R 1, I do not see any merit in the bail application which is accordingly dismissed.