1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.---The applicants Jhando son of Abdul Rehman and Mumtaz son of Jhando are facing trial in the Sessions Case No,56 of 2005 in the Court of Sessions Judge, Naushahroferoze in an offence under sections 302, 324, 114, 504/34, P.P.C. In Crime No,16 of 2005 registered at Police Station, Naushahroferoze. The applicants/ accused filed their bail application before the trial Court, which was dismissed on 5-10-2005 by the learned Sessions Judge, Naushahroferoze. The applicants named above have preferred bail application before this Court for seeking bail in the above-mentioned crime.
2. ' Brief facts as disclosed in the F.I.R. Are reproduced hereinbelow in extenso:-- "It is complained that there is agricultural lands of Majnoo Khan Chandio near Jhando Chandio in which Loosan grass has been grown from which we had purchased such grass from Majnoo Khan Chandio upon which Jhandoo Chandio and others were annoyed that as to you have purchased grass from there upon that matter Jhandoo Chandio and his son Fayaz Chandio had exchanged harsh words with each other. Today in the evening I and my brother Sardar Ali Chandio were cutting gross from the land of Majnoo Chandio. When at about 5-00 O'Clock accused namely Fayaz son of Jhandoo Chandio having DBBL gun,
2. Mumtaz son of Jhandoo Chandio having Lathi,
3. Mazhar son of Jannan Chandio armed with pistol,
4. Jhandoo son of Abdul Rehman empty- handed came running there by abusing and asked us that since we had prevented you not to cut grass from the land. On saying so, accused Jhandoo Chandio instigated other co-accused not to spare Sardar Chandio and others and to kill them. Then accused Fayaz Chandio and Mazhar Chandio with intention of murder fired direct gun and pistol shots. The gun shot of accused Fayaz Ali hit my brother Sardar Ali who raised cries and fell down on the ground, I took shelter and fell in the agricultural land. Then on our cries and fire-arm reports each one Muhammad Hassan son of Jaffer Khan Chandio and Abdul Rasheed son of Muhammad Murad Chandio and other people came running by challenging the accused persons. Thereafter all the accused persons went away along with their weapons and then we saw that my brother Sardar Ali Chandio had fired arm injuries on his chest of hole type to whom we immediately shifted to Civil Hospital, Naushahroferoze who died on the way. Leaving his dead body in Civil Hospital, - Naushahroferoze now appear and lodged the report that the above named accused persons on the matter of cutting grass and on the instigation of accused Jhandoo Chandio accused Fayaz Chandio and Mazhar Chandio had fired at my brother Sardar Ali Chandio aged about 25 years and have murdered him. I am complainant. Pray for redressal".
3. ' Mr. Ghulam Shabbir Dayo, learned counsel for the applicants has contended that the applicants are innocent and have been falsely implicated due to matrimonial dispute as well as the dispute upon the Harap of the land. As per F.I.R. The applicant No,1 Jhandoo was empty-handed and there is allegation against him that he instigated the remaining accused persons at the scene of incident whereas applicant No,2, Mumtaz was armed with Lathi but the said weapon was not used in commission of alleged crime, therefore, the presence of applicants is to be determined by the trial Court as regards for vicarious liability. The above named applicants have not participated in the alleged crime but according to F.I.R. The gunshot injury is' attributed to co-accused Fayaz, which hit the deceased Sardar Ali, which resulted into his death. The enmity between the parties is admitted in the F.I.R. Although there is allegation against applicant Mumtaz that he was armed with Lathi at the time of incident but he had not used the same, therefore, common object of the present applicant/accused requires further inquiry.
4. ' Mr. Ghulam Shabbir Dayo, learned counsel for the applicants in support of his proposition has relied upon the following case-law:--
(1) Abdul Rehman v. Jawed and 2 others 2002 SCM R 1415
(2) Faraz Akram v. State 1999 SCM R 1360
(3) Shafi Muhammad v. State 1999 PCI-.LJ 890
(4) Wazir and others v. State 2003 M LD 1737.
(5) Alishah v. State 2002 PCr.LJ 707 ' Mr. Habibur Rehman Shaikh, learned A.A.-G. Has not disputed the above position and stated that as per F.I.R. Fatal shot is attributed to main accused Fayaz, applicant Muhammad was armed with Lathi whereas applicant Jhandoo was empty-handed and instigated the other co-accused for commission of the offence but no specific part is attributed to them except their mere presence at the place of incident. He has further argued that during the course of investigation Lathi has been recovered from the applicant Mumtaz whereas crime weapon has been recovered from the principal accused Fayaz and two empty cartridges were also recovered from the place of incident.
5. In the light of the facts as argued by learned counsel for the applicants he has extended no objection to the grant of bail to the applicants.
6. ' I have heard the arguments of learned counsel for the respective parties, examined the material placed on record and the case-law cited at Bar. As per F.I.R. The enmity exists between the parties before the alleged incident, the applicant Jhandoo was empty-handed that there is allegation he instigated other accused for commission of offence whereby co-accused Fayaz fired at deceased Sardar Ali. The applicant Mumtaz was armed with Lathi but there is no allegation that he caused any injury to the deceased or P.Ws. At the time of incident.
7. ' In the case of Abdul Rehman v. Jawed and 2 others 2002 SCM R 1415 (supra) was considered by the Honourable apex Court in which bail was granted by the Honourable Lahore High Court and the bail cancellation application was moved but the Honourable Supreme Court declined to interfere with the bail order granted by the Honourable Lahore High Court only on the ground that Lalkara and firing in air was attributed against the accused persons and the accused persons had no intention to kill the complainant or to deceased or to dispossess them from the land. It has been held that High Court had rightly held the role of the accused persons to be that of further inquiry. In the similar circumstances the Honourable apex Court in the case of Faraz v. State 1999 SCMR 1630 has observed as under:-- "5. In support of this petition, it was contended that no overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do.
8. The circumstances thus reveal that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr.P.C. Accordingly, we convert this petition into appeal, allow the same and direct that the petitioner shall be released on bail provided he furnishes security in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the trial Court."
9. ' In the case of Shahid v. The State reported in 1994 SCM R 393 bail concession was extended to accused who caught hold of the deceased when his co-accused was inflicting dagger blow to the deceased. In the above cited case the Honourable Supreme Court has held as follows:-- "It was contended by the learned counsel that the petitioner has been attributed the role of his having caught hold of the deceased when his, co-accused was inflicting the dagger blows and similar role was attributed to Munsif their father for having given kicks and fist blows to the deceased. The latter having been extended the concession of bail, on the principle of consistency, petitioner is also entitled to the grant of bail. That in view of the statements of the prosecution witnesses during the investigation it is to be determined whether petitioner facilitated the commission of the offence for application of section 34 makes out a case for further enquiry."
10. ' As per prosecution case, the main accused Fayaz had fired at the deceased in view of the allegation of instigation/emptyhanded and no Lathi was used by co-accused Mumtaz, the applicability of section 34, P.P.C., is yet to be determined at the time of trial. The enmity is admitted between the parties prior to the lodging of the F.I.R. The question of participation of present applicants/accused in commission of the offence needs further inquiry as envisaged in subsection
(2) of section 497, Cr .P. C .
11. ' In view of the above dicta of the Honourable apex Court as well as High Court decisions, the applicants are entitled for the grant of bail. Learned A.A.-G. Has rightly conceded for grant of bail.
12. ' Resultantly bail is granted to the applicants/accused subject to furnishing surety in the sum of Rs,1,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.
13. ' Cr. B.A. No,543 of 2005 stands disposed of..