IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-437 of 2018.

Date	Order with signature of Judge

Applicants: 1. Wahid Bux.

2. Allah Bux alias Goro, both sons of Hussain Bux, bycaste Thebo.

(Now confined at Central Prison Khairpur).

Through Mr. Inam Ali Mailto advocate.

The State. Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Date of hearing. 07-12-2018.

Date of decision. 07-12-2018.

O R D E R.

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AMJAD ALI SAHITO, J.- Through the instant bail application the applicants/accused Wahid Bux and Allah Bux @ Goro both bycaste Thebo seek their post arrest bail in Crime No. 67 of 2018, offence u/s 302, 364, 337H(ii), 148, 149 P.P.C registered at police station Kotdiji. The instant bail application is directed against the order dated 28-05-2018 passed by learned 1st Additional Sessions Judge Khairpur, whereby the pre arrest bail application of applicants/accused was rejected.

2. Succinctly, the prosecution case is that complainant Asif Ali Bugti lodged the F.I.R. on 17-04-2018 alleging therein that on the day of report he along with his brothers Kashif Ali and Jameel Ahmed were available at the DERA of wheat. It was about 12-10 am (midnight) where they saw that eight armed persons, who were identified to be Bachal with pistol, Shahnawaz with repeater, Shah Dino alias Shahan with rifle, Mushtaq with pistol, Arbelo with pistol, Allah Bux alias Goro, Wahid with guns and Nadir Ali with pistol, all bycaste Theba came there and overpowered upon the complainant party. Accused Bachal instigate other accused to abduct Kashif and till they will not mutate the land in their name, they will not release him. Accused Shahnawaz and Shahid Dino tried to abduct away Kashif towards west and other accused persons overpowered upon the complainant party. The complainant party raised cries, then accused Bachal made straight fire of pistol upon Kashif, which hit him and fell down and remaining accused persons made aerial firing in order to create harassment. On the cries and firearm report, the co-villagers attracted towards the place of incident. On seeing them coming all the accused persons escaped away. Then complainant saw that his brother Kashif sustained one firearm injury at his temporal region, which was through and through and died at the spot. Ultimately complainant appeared at police station and lodged the above said F.I.R.

3. It is, inter-alia, contended by the learned counsel for the applicants/accused that applicants/accused are innocent and have falsely been implicated in this case by the complainant due to dispute over the landed property, which complainant himself has admitted in the FIR; that mere presence of the applicants/accused with guns and making aerial firing is shown by the complainant in the F.I.R, otherwise no any specific role has been attributed to them by the complainant and such allegation is general in nature; that co-accused Nadir Ali having identical role has been granted pre-arrest bail by this Court, hence the applicant/accused is also entitled for the same relief.

4. Learned APG for the State has conceded the arguments of learned counsel for the applicants/accused.

5. I have considered the submissions of the learned counsels for the applicants/accused, learned APG for the State and have gone through the material available on the record with their assistance.

6. Perusal of record shows that mere presence of the applicants/accused Wahid Bux and Allah Bux alias Goro with guns and making aerial firing is shown by the complainant in the F.I.R, otherwise, neither they caused any injury to deceased nor any specific role has been attributed to them and such allegation is general in nature. Admittedly, the deceased Kashif has sustained only one firearm injury at his temporal region which is attributed to co-accused Bachal. The enmity over the landed property is also admitted by the complainant in the FIR with the accused, hence false implication of applicants/accused cannot be ruled out. It has been held by the Hon'ble Supreme Court that where no active role is attributed to accused and it is mere presence then the case becomes of further inquiry. It is yet to be determined at the time of trial, whether applicants/accused have shared their common intention with co-accused or not, therefore, keeping in view the facts and circumstances of the case in hand, prima-facie the case against the applicants/accused requires further enquiry as contemplated in subsection (2) of section 497 CrPC. Moreover, co-accused Nadir Ali having similar role has been granted pre-arrest bail and case of applicants/accused is identical to that of co-accused, hence they are entitled for the grant of bail as per rule of consistency.

7. In view of the above, the learned counsel for the applicants/accused have made out the case for grant of bail, therefore, the applicants/accused Wahid Bux and Allah Bux @ Goro both sons of Hussain Bux Thebo are admitted to bail subject to their furnishing solvent surety in the sum of Rs. 100,000/- (one lac) each and P.R bond in the like amount to the entire satisfaction of learned trial Court.

8. Needless, to mention that the observations made herein above are tentative in nature and would not prejudice the case of either party at trial.

Judge

Nasim/P.A