1. ' MRS. YASMEEN ABBASEY, J.~ Applicant Muhammad Qasim challaned in a case under Crime No,37 of 2005, under sections 302, 148, 149, P:P.C. And 13-D Arms Ordinance has moved this bail application.
2. ' Case of prosecution is that on 17-3-2005 when complainant alongwith Ali Nawaz, Mumtaz and Mahar was returning from Sukkur and had reached near new bridge of Piryaloi, this applicant in company of Bagh Ali, Roshan, Allah Wassaayo, Rasheed and Sajjan came there on two motor cycles and encircled the Van of the complainant and then accused Bagh Ali, Roshan Ali armed with .Kalashnikov and applicant/accused Muhammad Qasim armed with pistol fired on complainant's cousin Ali Nawaz with intention to commit his murder. He received injuries on different parts of body and died at the spot.
3. ' Learned counsel for the applicant has argued that F.I.R. Is outcome of previous enmity in between the parties due to some land. Even if case of prosecution is taken as it is, 6 persons are shown accused duly armed with deadly weapons, allegation of firing by all of them are there, hence under these circumstances it is yet to be determined that who caused fatal injury to deceased Ali Nawaz resulting his death. As per prosecution story three main accused namely Qasim, Bagh Ali' and Roshan Ali had fired. As per medical report out of 6 injuries injury No,l received by deceased was sufficient to cause his death, but in the circumstances when about 6 persons are shown as culprits it is difficult to form a definite opinion against a particular person. Supporting his arguments he has relied upon 1980 SCM R 784 Jaffer and others v. The State wherein it is observed that material on record not showing as to which of accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill deceased, is a case of further enquiry and bail was granted.
4. ' On the last of hearing report was called from the Trial Court about progress of the matter and it has been reported that except one P.C mashir Noor Muhammad who had been given up no progress has taken place. Complainant and most of the witnesses of this case are involved in Crime Nos. 18/1999 and 110/2006 registered at Police Station F.M. Naarejo and Police Station Baberldi respectively and as all of them are absconders in these cases and their whereabouts are not known therefore at the moment there is no likelihood of any progress in the matter.
5. ' Learned counsel has further pointed out that about 8 empties are shown to have been recovered from the place of incident, out of those 3 were found from outside and 5 were found from inside the car. One pistol is said to have been recovered from the possession of the applicant. Admittedly the pistol recovered from the possession of applicant has not been sent to ballistic expert to confirm that whether it was used in the commission of offence.
6. ' Learned A.A.-G. Has opposed the bail application on the ground that the name of the applicant has been mentioned in the F.I.R. Co-accused Abdul Rasheed and Roshan Ali were granted bail on the ground of alibi, which is not available to applicant. Learned A.A-G. Has relied upon 1995 SCM R 1765 Haaji Gulu Khan v. Gul Daraz Khan and another, wherein by High Court was declined by Hon' ble Supreme Court of Pakistan, but on very different footing. Facts and observation made therein are reproduced as under:- ' "..................... The learned counsel for respondent No 1 however contended that two prosecution witnesses examined under section 164, Cr.P.C. Made improvement in their statements by stating that the first shot on the deceased was made by respondent No,l. Firstly the question whether the witnesses while examined under section 164, Cr.P.C.Made improvement on their earlier statements recorded by the police under section 161, Cr.P.C. And what is the effect of this improvement on the case of prosecution, is a matter of deeper appreciation of evidence which can only be done at the trial. Secondly, for the present even if the alleged improvement made by the witnesses in their statements under section 164, Cr.P.C. Are ignored there are definite allegations of firing by respondent No,l on the deceased which would prima facie connect him with the offence alleged against him. The learned counsel for respondent No,l also contended that there was delay of about 4 hours in lodging the F.I.R. For which no plausible explanation was offered by the prosecution. The F.I.R., in the case was lodged by Haji Gulu Khan on , being informed by his relative Saleh Muhammad who in turn was informed by Missal Khan was allegedly present with the deceased at the time of incident. Whether these circumstances justified the delay in registering the F.I.R., in the case or there were other plausible explanations for the delay in filing the F.I.R. Is once again a question which can be gone into at the trial only and not at the stage of decision of the bail application in the case. No doubt, the benefit arising from the delay in lodging the F.I.R., goes to the accused which could also be taken into consideration alongwith other circumstances in the case at the stage of deciding the bail application, but delay in lodging the F.I.R., alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment..."
7. ' Applicant is behind bars since 27-3-2005 and according to report of trial Court neither any progress has been made nor there is likelihood because' of absconsion of complainant and witnesses and having no knowledge of their whereabouts in criminal cases pending against them.
8. ' Enmity is admitted in between the parties. Out of 6 persons three have been granted bail though on different ground. The pistol recovered from the applicant and empties secured from place of incident have not been sent to the ballistic expert to form opinion whether the shot resulting death of deceased was fired from the pistol recovered from the possession of the applicant. According to medical report six injuries were received by the deceased and injury No,l is shown to be sufficient to cause death of deceased, specific role was not attributed against this applicant and it is yet to be determined as to who caused fatal injury to the deceased.
9. ' In view of the foregoing reasons it is a case of further enquiry. Applicant is behind the bars since 28-3-2005. Bail application is allowed. Applicant is ordered to be released on bail on furnishing surety in the sum of Rs,500,000 (Rupees five lacs) and P.R. Bonds in the like amount to the satisfaction of trial Court.
10. ' Bail application stands disposed of