1. ' By this order I intend to dispose of criminal bail application filed on behalf of applicant Sabir Ali Khuhawar in a case bearing Crime No,20 of 2002 of Police Station Market, Larkana, for an offence under sections 302, 324, 34, P.P.C. The bail plea of the applicant was declined by the learned 5th Additional Sessions Judge, Larkana vide order, dated 4-12-2003.
2. ' Prosecution story as unfolded in the F.I.R. Is to the extent that on the eventful day the complainant Hakim Ali appeared at Police Station Market and lodged F.I.R., the features thereof goes to show as under:-- "Complaint is that about four months ago our caste-fellow Muhammad Soomar Kalyar had married Mst. Shahida daughter of Hussain Bux Khuhawar through Court, hence Sabir Ali son of Hussain Bux Khuhawar had lodged such F.I.R. For her abduction against Muhammad Soomar and my brother Shamir and others at Police Station Market and that case was disposed off under `cancel class. Sabir Ali used to say that they will not spare us. Today I, my brother Shamir and relative Moula Bux son of Yar Muhammad Noohani resident of Sobho Khan Noohani and Allandino Luhar resident of Moria Khan Luhar, Taluka Larkana, together were sitting adjacent Fish Market near the hotel of Rauf Pathan and were taking tea and in the meantime at 11-30 a.m. Each one Muhammad Uris son of Shafi Muhammad, (2) Sabir Ali son of Hussain Bux, (3) Zahid alias Papoo son of unknown, all by caste Khuhawar, resident of Muhalla Aligoharabad, came there. Out of them Muhammad Uris was having rifle in his hand, Sabir Ali and Zahid alias Papoo were having pistols in their hands. As soon as they came, Sabir Ali challenged my brother Shamir by saying that you, Muhammad Soomar and others had forcibly abducted my sister Shahida and got her married with Muhammad Soomar, you will not be spared and murder you. By saying so, Sabir Ali and Zahid alias Papoo fired straight shots from their pistols at Shahmir which hit him and Muhammad Uris fired straight shots from his rifle at Shahmir which also hit him and he raised cries and fell down. We challenged the accused and thereafter that accused fled away alongwith their weapons from the hotel towards northern side. Thereafter, we saw Shahmir having fire shot injuries on right side underneath nipple and both left and right lumber regions, blood was oozing and was unconscious and was lifted to C.M.C. Hospital for emergency treatment and now I have come to lodge the F.I.R.
3. That the above accused with their common intention duly armed with weapons with intention to commit murder have fired from their weapons straight shots and injured him. I am complainant, investigation be made."
4. ' The investigation followed and in due course the applicant Sabir Ali was sent up to stand trial in the Court of competent jurisdiction.
5. ' I have heard learned counsel for the respective parties and perused the record. It is contended by the learned counsel for the applicant that the case against him is false who has been involved in the background of enmity and suspicion. It has also been contended that it is a case of general allegations and no specific part is assigned to the applicant. It has also been argued that on 13-5- 2002 the confessional statement of co-accused Allah Dino was recorded before the Judicial Magistrate wherein there is no mention of applicant Sabir Ali. It has further been explored that injured Shahmir after receipt of the fire-shot was alive for 20 days but no attempt was made to record his statement before any competent forum. The record further reveals that one empty of 7 mm was recovered from the place of Wardat but there is no recovery of weapon of offence, in such circumstances, the circumstantial evidence of recovery cannot be of any legal importance. The counsel further argues that the applicant was arrested on 1-5-2002 and he has remained behind bars almost for one year but the case has not yet been finalized. The counsel stressed upon the need that under these circumstances, it is a fit case where the applicant could be enlarged on bail.
6. In support of his contentions, learned counsel has referred to the following citations:-- ' (a) Shahbaz Gul v. The State 1984 PCr.LJ 2495, (b) Jaffar and others v. The State PLD 1980 SC 786,
(c) Mahfooz-ur-Rehman and others v. The State 2001 PCr.LJ 1692 (d) Aslam and others v. State 1999 M LD 1033.
7. ' As against the arguments of learned counsel for the applicant learned Assistant Advocate- General Mr. Ali Azher Tunio appearing on behalf of the State however, opposed the grant of bail to applicant Sabir Ali as according to him there are four eye-witnesses of the occurrence namely complainant Hakim Ali Kalyar and three more namely Shahmir, Moula Bux and Allah Dino in which they have fully implicated the applicant which according to him is a substantive piece of evidence against the applicant and the same is seeking corroboration from the statement of eye-witnesses, as according to the F.I.R. They being armed with their respective weapons were alleged to have fired on the person of deceased which hit him. The counsel further urged that it is also a case of strong motive. In this background, learned Assistant Advocate-General has emphatically urged that it is not a fit case where the applicant can be enlarged on bail. I have given my anxious consideration to the arguments of respective parties and perused the record which reveals that arguments raised by the learned counsel for the applicant appears to be more weighty in comparison to the arguments raised by the learned Assistant Advocate-General appearing on behalf of the State. The FIR. Shows that the applicant Sabir Ali being armed with pistol, alongwith co-accused namely Zahid alias Papoo and Muhammad Uris, duly armed with pistol and rifle respectively, participated in the occurrence to the extent that besides instigation he alongwith accused Zahid collectively fired at Shahmir from their respective pistols which hit Shahmir. Moreso accused Muhammad Uris who was assigned specific role of causing fire-arm from his rifle at Shahmir which also hit him. No specific injury is attributed to the present applicant Sabir Ali.
8. Moreover, it has also come on record that only one empty of 7 mm was recovered from Vardat whereas in the F.I.R. The applicant Sabir Ali was alleged to be armed with pistol. The perusal bf record further shows that the applicant is behind bars since his arrest with effect from 1-5-2002 but the trial Court has failed to conclude the trial. The fact that who caused the fatal injury, would be determined at the trial. On this point, I am fortified by the -case-law cited above in the case of Jaffar and others (supra) where the honourable Supreme Court while granting bail to the applicant was of the opinion that material brought on record, not showing as to which of accused caused fatal injury leaves room for consideration regarding common intention of co-accused to kill deceased. It has also been brought in my notice that the injured Shahmir died after 20 days and to my surprise, no attempt was made to record his statement. Admittedly, P.W. Maula Bux is related to the complainant while P.W. Allah Dino in his statement under section 164, Cr.P.C. Has not implicated applicant Sabir Ali which is in conflict to the case of complainant in the F.I.R. And his statement under section 161, Cr.P.C. Who has denied the presence of applicant Sabir Ali at the Vardat. This has created some doubt. Moreso it appears to be a case of cross-versions. On the point of cross- version, the case-law cited above by the learned counsel for the applicant appears to be very close to the facts and circumstances of the case in hand. It is well-settled that in case of two versions, the version favorable to accused shall tentatively be accepted. The deceased immediately after receipt of the fire-arm injury was referred to the Medical Officer and on his advice he was removed to Karachi for medical aid but due to lack of medical assistance the injured succumbed to the injuries.
9. ' In view of the above discussion, apparently the case of prosecution calls for further enquiry. In the circumstances, the application is granted and it is directed that applicant Sabir Ali shall be released forthwith provided he furnished surety in the sum of Rs,2,00,000 and P.R. Bond. In the like amount to the satisfaction of the trial Court.
10. ' Criminal Bail Application No,61 of 2003 stands disposed of.