1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No, 58 of 2009 was registered at Police Station Lakhi Ghulam Shah on 14-4-2009, at 1230 hours, for an incident alleged to have occurred on 13-4-2009, at 6-00 p.m. The complainant was one Mst. Dana Khatoon. She stated that her family had dispute over women with one Shah Dost Brohi. On the fateful day, while the complainant along with her daughter-in-law, daughter and grandson was coming for medicines and as they reached lands of Muhammad Ameen Bhutto near Lakhi, they saw 20 persons including present application No,1 (at No,10), application No,2 (at No,12) and applicant No,3 (at No,13). One accused Shah Murad gave hakal and told grandson of the complainant the he would be killed. Saying so Shah Murad fired from his K.K., which hit grandson on right eyebrow and exited through the head. Thereafter, Bahadur fired from his rifle, which hit on the backside of neck of grandson. Thereafter, it is alleged that the other accused persons fired from their respective weapons with intention to commit murder which hit on his right arm.
2. ' Bail application was filed in the Court below, which was dismissed vide order, dated 27-1-2010 for the following reasons:-- "I have considered the arguments made before me by the learned counsel for the accused as well as learned counsel appearing on behalf of the State and perused the case papers available on the record and gone through the case-law supra. It appears that alleged incident had taken place on 13-4-2009 at about 0600 hours, The complainant had lodged F.I.R. On 14-4-2009 at 1230 hours, The distance between wardat and Police Station in about 2/3 kms. The complainant in her F.I.R. Has stated that all the accused fired which hit to Bashiruddin. According to complainant the deceased Bashiruddin raised cries and fell down. There was bleeding from him and he was alive. According to complainant she brought injured Bashiruddin to Lakhi Hospital and later on she brought the injured to Civil Hospital Larkana for treatment. Thereafter injured died in the hospital. After his death complainant came to Police Station and lodged F.I.R. It reveals that the delay in lodging F.I.R. Is plausibly explained by the complainant. The accused are nominated in the F.I.R. And they have taken active part in commission of alleged offence. After commission of crime all the accused absconded away and police submitted challan against the accused under section 512, Cr.P.C. This Court had issued NBWs against the accused which could not be executed."
3. ' Learned counsel for the applicants submitted that F.I.R. Is delayed by 18 hours, He further submitted that there is no allegation of direct firing. He further submitted that although in the F.I.R. It is stated that other accused fired from their weapons, which hit the deceased on his right arm, but medical evidence shows only two entry wounds two exit wounds. One set of them is on temporal region and other is on right upper arm. He submitted that when there are 19 accused persons who are alleged to have fired and the fire is alleged to have hit the arm of the deceased, it is not yet determined as to who made the fatal fire and the case is of further inquiry. He relied upon Faraz Akram v. The State, 1999 SCM R 1360, Syed Amanullah Shah v. The State, PLD 1996 SC 241 and Muhammad Saeed Mehdi v. The State, 2002 SCM R 282.
4. ' Mr. Nisar Ahmed G. Abro, learned State Counsel, submitted that since no crime weapon has been recovered from the accused, nor any empty has been secured from the site of the incident, he, therefore, does not oppose this bail application.
5. ' I have considered the submissions made by the learned counsel and have also gone through the record.
6. ' In Faraz Akram's case (supra) the complainant was a practising Advocate. His brother was standing outside his house along with his friend. At that time, one car passed from there at a high speed with high volume music. Brother of the complainant asked the driver of the car to tone down the volume of the music. The driver of the car did not like it. After sometime they returned in the same car with the person accompanied by a gunman carrying a pump action gun and another friend who was armed with baseball bat and yet another friend was armed with `Danda'. Car was stopped. Those armed with firearms aimed their weapons and fired. One who was armed with base fall bat gave successive bellows on the head of the deceased, as a result of which it started bleeding profusely. The accused carrying `Danda' also inflicted blows, while the gunman fired with his pump-action gun directly. The Supreme Court held that since it was only one person Hasnain who had fired fatal shot, the question of vicarious liability of the petitioner will be determined at trial. Consequently, bail application was allowed.
7. ' In Amanullah Shah's case (supra), occurrence took place on 25-7-1995. Irshad Ahmed accused allegedly caused death by fire-arm on the instigation of petitioner Amanullah Shah. It was stated in the F.I.R. That the petitioner within hearing of two P.Ws. Had instigated Irshad Ahmed to eliminate the deceased. Additional Sessions Judge granted bail on the ground that the story that the petitioner instigated Irshad Ahmed to kill the deceased in presence of two witnesses was highly improbable. Application under section 497(5), Cr.P.C. Was filed in the High Court. High Court allowed the application and cancelled the bail. The m:..Tter went to the Supreme Court. The Supreme Court referred to the bail granting order of the Additional Sessions Judge on the point that besides two prosecution witnesses in whose presence the said instigation was given there was no other evidence available and then since it was highly improbable that one would give such kind of statement in presence of witnesses, set aside the order passed by the High Court and allowed bail to the accused.
8. ' Saaed Mehdi's case is a case under the National Accountability Ordinance. The facts are not really relevant, but learned counsel relied upon placitum "B", where the Supreme Court has observed that "object of a criminal trial is to make the accused to face the trial and not to punish an under-trial- prisoner for the offence alleged against him. The basic idea is to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars, The facts of Faraz Akram's case are quite relevant to the present case. There are only two entry and two exit wounds. One wound is on head and there specific allegation that it was caused by Shah Murad. Other one is on arm and F.I.R. Firstly states that Bahadur fired from his rifle which hit the deceased on backside of neck and then all other accused fired from their respective weapons, which hit on his right arm. There are 18 such other accused, therefore, it is not yet determined as to how many fired because no empties have been recovered from the side A and it is not yet determined as to whose fire hit the deceased. Therefore, the case is of further inquiry.
9. Consequently, this bail application is allowed. Let the applicants be admitted to bail for a sum of Rs,300,000 each with P.R. Bond and one surety in the like amount to the satisfaction of the trial Court.