ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr.B.A.No.763 of 2009

For hearing

ORDER

28.10.2009

Mr.Ubedullah Ghoto Adv: for applicants.

Mr.Sardar Ali Shah A.P.G. for the state.

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On 03.08.2008 at about 3:00 a.m. this FIR was registered by Hakim Ali and the incident took place on the same date at about 1:00 a.m. According to complainant he alongwith his brother Gul Muhammad, relative Jummo went to the house of his nephew Noor Hassan and stayed there for night, where he is residing with his family. His buffaloes were also tethered in the courtyard of the house of Noor Hassan and electric bulbs were on. The complainant party woke up on the barking of dogs at about 1:00 a.m. and identified on the source of electric bulbs Yaseen, Soofi, Fareed all three sons of Ameer Bux with kilashnikoves, Moriro, Hazoor Bux @ Hazoor with kilashnikoves, all Chachar by caste and three unidentified persons with opened faces, who can identified as and when seen again. They also un-tethered the buffaloe of Noor Hassan, therefore, they were resisted by the complainant party. Accused Yaseen allegedly fired from his K.K. to Noor Hassan with intention to kill him so also accused Soofi and Moriro made straight fires of Kilashnikove upon nephew Noor Hassan which hit him and he fell down on the ground. While complainant remained silent due to fear of weapons and thereafter all accused went away by taking buffaloe of Noor Hassan and making aerial firing. Thereafter they saw Noor Hassan who received fire arm injuries on his chest the same was through and through, so also fire arm injury on his right side of the chest, one fire on his upper side of the arm and blood was oozing. He brought at Taluka Hospital Ubauro for treatment but he not survived and died, thereafter FIR was registered.

During investigation the present applicants were arrested on 14.08.2008 but according to learned counsel for the applicants nothing was recovered from their possession and final report was filed on 29.08.2008, presently the applicants are facing trial in the court of learned IIIrd Addl.Sessions Judge M.Mathelo. Bail application of the present applicants was filed before the learned trial court but the same was dismissed vide order dated 18.8.2009 and this order is impugned in the present bail application before this court.

Heard arguments of learned counsel for the applicants and learned A.P.G. for the state. Bail application was opposed by learned A.P.G. for the state.

Learned counsel for the applicants contended that though the applicants were allegedly armed with kilashnikoves but according to the case of prosecution there is no role against them. He further contended that though both the applicants were arrested during investigation but neither crime property nor case property was recovered and these two points have not been controverted by the learned A.P.G. learned counsel for the applicants state that the applicants are behind the bar since 14.08.2008 and the case has not been proceeded. He further prayed that in the similar circumstances bail has been granted by the Honourable Supreme Court as well as High Court. He relied upon the case of Sher Khan and another vs. The state and another 1980 SCMR 193, Case of Mumtaz Hussain and 5 others vs. The state 1996 SCMR 1125, Case of Yaroo Vs. The state 2004 SCMR 864. While learned A.P.G. for the state relied upon the case of Munawar vs. The state 1991 SCMR 1092 in which that there were no role but bail was dismissed. This order will be presumed as over ruled by the order of applicant Yaroo vs. The state 2004 SCMR 864, as earlier bail application was decided by two Honourable Judges while latest observation this bail application has been decided by the three Honourable Judges of the Supreme Court.

Accordingly, I allow this bail application. The applicants shall be released on bail subject to furnish solvent surety in the sum of Rs.200,000/- (Two lacs)each and P.R. bond in the like amount to the satisfaction of the learned trial court.

JUDGE