1. Present applicant is seeking bail in Crime No, 136/2000 registered with Police Station Khanpur under Sections 302, 342, 34, 148, 149, P.P.C. and 13(d) Arms Ordinance.
2. Brief facts of the case are that on 23.11.2000 at 9:30 hours complainant Imam Bux Panhwar lodged F.I.R. stating therein that deceased Ameer Bux aged about 40 years is the real brother of the complainant and was residing with him in the same house. About three years back prior to the present incident Guhram was murdered in the house of the complainant and the F.I.R. to that effect was lodged against Imam Bux and his brother Ameer Bux and they were challaned and the case is pending trial in the Court of Sessions Judge, Shikarpur. A Taisla' of deceased Guhram was effected about 5/6 months before Sardar Manzoor Khan Panhwar and Rupees three lacs were imposed upon Ameer Bux. On the fateful day of incident accused Dur Muhammad armed with gun, Wazeer armed with gun, Naseer (the present applicant) was -firmed with gun, Ghulam Qadir and Jeejal both were armed with hatchets came to the house of complainant to see the cattle. At that time Ameer Bux, his uncle Subhan and brother of complainant namely Ghulam Muhammad and other persons were available in the Otaq. The accused after seeing the cattle asked the complainant that they will take away cattle for 2/3 days and they asked complainant and Ameer Bux that they may be left ahead of Dilu Daro Road. The complainant alongwith his brother were going with the accused persons when they reached near paddy crop in the land of Nisar Panhwar, the other three unidentified persons came there and met with accused Dur Muhammad and others who were armed with lathies. Accused Dur Muhammad and Wazeer tied tied the eyes and mouth of the complainant with cloth and they were tied with Babar Tree. Thereafter accused persons took away the said Ameer Bux and fire shots were heard by the complainant towards the bridge and thereafter the complainant -tried to untie himself and came to his village narrated with regard to the incident to the witnesses afore named and thereafter found the dead body of Ameer Bux was lying in bushes near the fish pond of Wariyal Shah and went to lodge the F.I.R.
3. Learned counsel for applicant has argued that co-accused Ghulam Qadir and Jeejal have been placed in Column No, 2 of challan copy while co-accused Wazeer, Dur Muhammad are still absconders. The presence of the present applicant has not been shown at the time of committing the offence. He has further contended that it is un witnessed incident and has prayed for grant of bail. On the other hand Mr. Muhammad Iqbal Memon learned State counsel has opposed to the grant of bail.
4. I have considered the arguments rendered by the learned counsel for the parties and have gone through the material available on record and perused the police papers. Admittedly the co- accused Ghulam Qadir and Jeejal have been placed in Column No, 2 of challan copy dated 16.12.2000. Admittedly the main accused in the case are Wazeer and Dur Muhammad who are absconders and at the time of the commission of the offence presence of the present applicant has not been shown by the complainant in the contents of the F.I.R. Admittedly there is no recovery from the present applicant who is said to have been arrested on 30.11.2000. Since co-accused Ghulam Qadir and Jeejal have been placed in Column No, 2 of challan copy and prosecution is short of evidence against them while main accused Wazeer and Dur Muhammad are still absconders. The contention of complainant with regard to the majority of accused in the contents of F.I.R. not proper .Reference can be made of a case reported in 1982 S.C.M.R. 955 wherein the Hon'ble Supreme Court has granted bail to co-accused on the ground that the accused have been placed in Column No, 2 by police and granted bail to co-accused who is reported to have caused injuries on the leg if deceased. In the present case no role has been assigned to the present applicant and even his presence at the time of wardat is the question which can be thrashed out at the time of the trial. Reference can be made of case Mumtaz Hussain & 5-others v. The State reported in 1996 S.C.M.R. 1125, wherein the Hon'ble Supreme Court has granted bail to the accused who were duly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons. Question whether the accused in such circumstances shared common intention with co-accused who had caused the death of the deceased needed further enquiry. Petition for leave to appeal was converted into appeal in circumstances and accused were admitted to bail accordingly. In the presence case the participation of the present applicant in the alleged offence and sharing his common intention with co-accused Wazeer, Dur Muhammad who are absconders, and with Chulam Qadir and Jeejal placed in Column No, 2 which can be thrashed out at the time of trial and the case is falling within the purview of Section 497(2), Cr.P.C. Accordingly, the present applicant namely Naseer is granted bail subject to furnishing surety in the sum of Rs. 100,000/- and PR bond in the like amount to the satisfaction of the trial Court.