' SARMAD JALAL OSMANY, J.---This petition calls in question the order dated 30-9-2008 passed in Criminal Bail Application No,1070 of 2008 by the learned Sindh High Court whereby bail was refused to the petitioner.
2. Briefly stated the case, as set up in the F.I.R., is that the petitioner along with eight other accused, each having a Klashnikov and riding on three motorcycles (i,e, three to a motorcycle) allegedly opened fire with their weapons on the complainant party comprising of the complainant and four others as a result of which two persons died.
3. Mr. Muhammad Ashraf Kazi, learned Senior Advocate Supreme Court appearing on behalf of the petitioner has in these circumstances submitted that the evidence so far procured by the Prosecution does not tally with the allegations in the F.I.R.In this regard he has referred firstly to the recoveries made at the spot, which were four empties of 7.62 m.m. Rifles whereas per the F.I.R. All nine accused opened fire with their Kalashnikovs. Secondly, per learned Senior Advocate Supreme Court the medical record only confirms three injuries suffered by deceased Gulmir and four by deceased Gulsher. Hence he has submitted that it is yet to be determined as to which of the accused, if any, used his fire-arm on the day of incident, which, in any event is doubtful as the empties are of a 7.62 m.m. Rifle and all the fire-arms are stated to be Kalashnikovs. Finally learned Senior Advocate Supreme Court has submitted that in the investigation carried out by the prosecution only three persons were sent up for trial and the rest of the accused, including the petitioners, were placed in column No,2 but the learned Magistrate has joined all the accused. In support of his submission, he has relied upon Abdul Ghaffar v. Munir 1981 SCM R 504.
4. On the other hand, Mr. Shahadat Awan, learned Prosecutor-General, Sindh has opposed the prayer of bail on behalf of the petitioner on the ground that he remained an absconder and hence has impeded the trial.
5. Mr. Mehmood A. Qureshi, learned Advocate Supreme Court appearing for the complainant has supported the arguments of learned Prosecutor-General and further submitted that at this stage there is sufficient evidence to connect the petitioner with the crime in question in which two innocent persons had lost their lives. According to him, in such-like cases when armed assailants attack unarmed victims, omission to pinpoint in the F.I.R. As to which assailant was armed with which weapon and who caused the injury is no ground for grant of bail. Consequently, mere presence of the petitioner along with other accused at the place of incident while being fully armed is enough at least to display his common intention along with others for committing the murder of innocent persons. In this respect, he relied upon Shah Zaman v. State PLD 1994 SC 65.
6. We have heard both the learned Advocate Supreme Court as well as learned Prosecutor- General, Sindh and perused the record with their assistance. In our opinion in so far as the issue of common intention is concerned, it is now well-settled that at the bail stage the same is normally one of further enquiry unless there are other compelling reasons and circumstances to reach a different conclusion i,e, by way of other pieces of evidence, which could definitely connect the applicant/ accused with the crime in question. In the present case, it is quite strange as to why the deceased only received three/four bullet injuries while per the F.I.R. All the accused used their automatic weapons and so also the fact that four empties of 7.62 m.m. Rifle were recovered from the spot and none of a Kalashnikov. This indeed casts doubt in the matter, which, at this stage must be resolved in favour of the petitioner. As to the case cited by Mr. Mehmood A. Qureshi, i,e, Shahzaman v. State (supra), the facts therein were different, inasmuch as all the three accused were stated to be armed with iron rods and lathis and had inflicted numerous injuries on the deceased who died as a result thereof. In the circumstances, this Court had come to the conclusion that there was sufficient evidence available with the prosecution to establish the common intention of all the three with each other although it had not been pointed out in the F.I.R.
As to which of the accused had used what weapon.
7. These are the reasons for our earlier order whereby this petition has been converted into an appeal and allowed and the petitioner granted bail in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.