1. ' Learned counsel says that per the F.I.R. Three unidentified accused waylaid the complainant and two prosecution witnesses while they were returning to their village on a motorcycle, out of whom one was armed with a KK and the other with a gun and the third one with a Lathi and a torch. The accused armed with the KK and gun fired upon the complainant party which hit the complainant and he fell down. Thereafter, all the three accused decamped with the motorcycle however, the police party which was available at the nearby picket started firing on which the accused left the motorcycle and made good their escape. On the foregoing facts learned counsel has firstly submitted that the only evidence available against the applicant/accused is the identification test in which he was picked out by two prosecution witnesses but without giving him any role.
2. Furthermore according to the police a torch and a Lathi has been recovered at the instance of the applicant/accused. Per learned counsel firstly identification on the light of a motorcycle when admittedly firing was going on would be very difficult and secondly the identification of the accused in the test without any role being ascribed to him at this stage would not be sufficient to connect him with the crime in question. Finally per learned counsel at the most his role in the entire episode was that of a bystander as the accused who was having a Lathi and torch in hand did not do any overt act to injure the complainant who had later on died. Learned counsel has therefore, prayed that the applicant be released on bail. In support of his contention he has relied upon Abdul Aziz v. The State 1996 SCM R 1693 and Faraz Akram v. The State 1999 SCM R 1360.
3. ' On the other hand the learned A.A.-G. Has opposed this bail application on the basis that the applicant has been identified in the test by the prosecution witnesses and so also a torch and Lathi has been recovered from him Hence at the least he could be convicted for the crime of robbery.
4. Additionally for the common intention of the applicant regarding the crime of murder per learned A.A.-G. Enough evidence is available to connect him with the same since he was available at the scene with the torch and Lathi with full intention to commit the crime.
5. ' I have heard the learned counsel for, the applicant as well, as learned A.A.-G. For the State.
6. ' It would be seen that per the prosecution case the crime was committed at night time viz. 10-15 p.m. And the prosecution witnesses were able to recognize the accused from the head light of the motorcycle. In my opinion prima facie this would be difficult as admittedly firing was going on and perhaps a scuffle took place. Secondly the accused has been picked up in the identification test without any role being given to him which is quite strange in the circumstances of the case since per the F.I.R. All the three accused have been identified with their weapons and roles have been given to them. Hence prima facie in my opinion in so far as the case of the applicant is concerned it is one of further inquiry. Additionally it would be seen that the present accused did not participate in the crime of murder at all and in these circumstances again his liability on the theory of common intention would be a question of further inquiry which would be only established at the trial.
7. ' For all the foregoing reasons I would grant this bail application. The applicant be released on bail provided he furnishes surety in the sum of Rs,2, 50,000 (Two lac fifty thousand) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.