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Criminal Bail Application No. 728 and Civil Miscellaneous Application No. 1093 of 1987, decided on-24th June, 1987

---S.497--Penal Code (XLV of 1860), S 302 & 148/149----Bail, grant of--Principle of consistency--Parties inimical to each other--Only eye-witness alleging that accused alongwith another co-accused got hold of deceased while other three accused firing at him--Accused not receiving even single pellet injury-- Co-accused charged with similar role already granted bail--Accused granted bail on principle of consistency in circumstances.

Mohammad Fazal alias Bodi v. The State 1979 S C M R 9 and Abdul Salam v. The State 1980 S C M R 149 ref.

Rasheed A. Rizvi for Applicant.

A. A. Mohammadally, Addl. A .G, for the State.

The brief facts of the prosecution case are that on 4-8-1986, one Ahmed lodged a report at P.S. Padidan, District Nawabshah, inter alia alleging therein that a dispute Has going on between him and Hassan Muhammad and others over land since last 6 months. Such cases are pending between the parties and both the parties are also facing proceedings under section 107. Cr.P.C. On the day of incident complainant and his brother Allah Dino left for Naushahro Feroze in the morning for attending the hearing of case in the Court. At about 6.30 a.m. when they reached near the house of Rasool Bux Vistro via path of Sada Canal, they suddenly saw five persons emerging from reed bushes from western side of path. Complainant identified them to be Ghazi, Gul Mohammad, Ghulam Sarrwar, Haroon and Soomar, out of them Soomar had pistol and rest had guns. Accused Ghani challenged him observing that today you would not be spared, thereafter all the accused fired straight at them from their fire-arms. The complainant ran backwards while Allah Dino brother of complainant ran towards house of Rasool Bux Vistro. Then all the accused followed his brother, in the meanwhile P.Ws. Adam and Pir Bux who were also following the complainant party reached there. They also saw accused firing and running after Allah Dino. After a short while cries and four or five gun shot reports were heard from the house of Rasool Bux. Then accused ran away with their weapons towards West. The complainant and P. Ws. then went to the house of Rasool Bux Vistro where they found Allah Dino lying dead in the court-yard of the house. He was bleeding profusely. They saw that he had injuries on front of chest and on his back Rasool Bux informed them that while he was sitting in the house, Allah, Dino came running inside his house. and hid himself in the room, he was followed by Ghazi, Gul Mohd, Ghulam Sarwar, Haroon armed with guns and Soomar Abrro with a pistol. He entreated them with reference to Holy Quran, but they dragged Allah Dino out of the room, threw him on the ground of the court-yard, and fired at him with guns and pistol. The complaint then left the P.Ws. over dead body, went to the P.S. and lodged his report. The applicant and co-accused were arrested and after necessary investigation they were challaned before the Court. They moved an application for bail before the learned Sessions Judge, Nawabshah, but the same was rejected.

I have heard Mr. Rasheed A. Rizvi, learned counsel for the applicant and Mr. A. A. Mohammadally, learned Addl. A.G., appearing for the State. I have also gone through the impugned order.

The contention of Mr. Rizvi is, that the case is false and is out come of enmity which has been admitted by the complainant in the F.I.R. That the only eye-witness who saw the actual incident and firing at the deceased, is P.W. Rasool Bux, as according to the prosecution the deceased was fired at in his house. That according to 164, Cr.P.C. statement of Rasool Bux, applicant Soomar and co-accused Gul Mohammad had caught hold of the deceased while Ghazi, Ghulam Sarwar and Haroon fired at him with their guns. It was further contended, that the co-accused Gul Mohammad has been released on bail by this Court, and therefore, the case of the present applicant being identical to that of Gul Mohammad, he is entitled to be released on bail, keeping in view the principle of consistency.

Mr. A. A. Mohammadally, learned Addl. A.G. appearing for the State, has conceded to the grant of Bail in view of the above factual and legal position. I have considered the contentions of the learned counsel for the applicant. The F.I.R. clearly shows, that there is enmity between the parties. Statements of P.Ws. Peer Bux and Adam do not show that they had actually seen the applicant and co-accused firing at the deceased. The only eye-witness according to whom the incident took place in his house, is Rasool Bux, and his statement u/s 164, Cr.P.C. shows, that the applicant Soomar and co-accused Gul Mohammad had caught hold of the deceased while the remaining three fired at him. The contention of Mr. Rizvi that the applicant could not be a fool to take so much risk by catching hold of the deceased when three persons were firing at him, and the fact that he has not received a single pallet injury on his person shows, that the allegation is false, has considerable force. Moreover, co-accused Gul Mohammad, whose case is identical to the present applicant, ha been granted bail by me vide order dated 5-5-1987. While keeping in view the case of Mohammad Fazal alias Bodi vs. The State, 1979 SCMR page 142, the applicant is entitled to Bail. In the case of Mohammad Fazal alias Bodi vs. The State, it was held by the Hon'ble Supreme Court "section 497/498, Cr.P.C. principle of consistency- That the co-accused to whom a role similar to that of the applicant was attributed had been so released, therefore, the principle of consistency requires that the applicant should also he released on bail" and the bail was granted.

In the case of Abdul Salam v. The State, 1980 SCMR page 142, it was held by the Hon'ble Supreme Court, that Courts to maintain equity of treatment between the persons placed in similar situation and similar circumstances-No distinction between case of petitioner and case of co-accused, who having been granted bail, privilege of bail should not have been refused to the petitioner, and the bail was granted.

In view of the above circumstances, I am of the considered view, that the applicant is entitled to be released on bail. I, therefore, direct, that the applicant shall be released on bail on furnishing surety in the sum of Rs. 50,000 and P.P. bond in the like amount to the satisfaction of the trial Court.

S.A/S-97/K Bail granted.

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