1. ' MAQBOOL AHMED AWAN, J.---The applicant Khan son of Muhammad Yousuf Junejo approached for grant of bail in Crime No,111 of 2008 of Police Station Qazi Ahmed for offences under sections 302, 404, 34, P.P.C.
2. ' The facts for disposal of the present application for grant of bail are that Muhammad Ismail, the complainant on 2-8-2008 at 1330 hours, lodged the F.I.R. At Police Station Qazi Ahmed, stating therein that on the fateful day he along with his nephew Din Muhammad and son Haji Khan Junejo were going on a motorcycle to village Sahib Soho for some work and when were returning, at about 9-30 hours, they reached near the land of Moharram Soho and on the light of motorcycle saw accused Ali Nawaz Junejo having country made pistol in his hand, the applicant having hatchet and two unknown persons having country made pistols, stopped their motorcycle, accused Ali Nawaz alighted nephew of the complainant Din Muhammad Junejo and asked him that he had falsely involved him in the case of theft and therefore, he will not spare him and will kill. On this accused Ali Nawaz made straight fire upon Din Muhammad who fell down. On report of fire-arm and cries, Roshan Ali Junejo the nephew of complainant and other people of village arrived and challenged the accused persons. It is alleged that applicant and two unknown accused caught hold of the complainant and witnesses and within their sight, Din Muhammad Junejo expired.
3. Thereafter, accused Ali Nawaz along with two unknown accused drove away on the motorcycle of complainant party whereas the applicant proceeded to his village along with hatchet. The complainant thereafter lodged the F.I.R. And stated that accused, on account of the case registered against co-accused Ali Nawaz have committed the murder of Din Muhammad and drove away the motorcycle of complainant party by accused Ali Nawaz and two unknown accused persons.
4. ' The police during course of investigation, arrested co-accused Muhammad Rafique who was identified by the complainant party in identification parade and from his possession, the motorcycle of deceased Din Muhammad was recovered.
5. ' The learned counsel appearing on behalf of the applicant argued that applicant is innocent and has been falsely involved in the case in hand; that motive of the incident is specifically attributed to co-accused Ali Nawaz; that as per F.I.R. The allegation against the applicant/accused is that he along with two unknown accused persons caught hold of the complainant party; that-applicant was shown armed with hatchet but he has not caused any injury to the deceased or any of the witness and even did not issue any threat to them; that after arrest of applicant, no incriminating article was recovered from his possession, that it is yet to seen in view of the above circumstances, whether the applicant/accused facilitated the co-accused in commission of the offence to attract section 34, P.P.C.; that case has been challaned and person of applicant/accused is no more required for investigation. In support of his contentions, the learned counsel has placed reliance upon the cases reported as:--
(1) Basharat Hussain v. The State (1978 SCM R 357).
(2) Shahid v. The State (1994 SCM R 393).
(3) Mehmood Akhtar and another v. Haji Nazir Ahmed and 4 others (1995 SCM R 310).
(4) Faraz Akram v. The State (1999 SCM R 1360).
(5) Farzand Ali v. Taj and 2 others (2000 SCM R 1854).
6. ' Conversely Mr. Mukhtar Ahmed Khanzada, learned counsel for the complainant opposed the grant of bail and contended that applicant/accused is vicariously liable for the offence; that name of the applicant transpires in F.I.R.; that applicant has facilitated the co-accused in commission of the offence and if he would have not facilitated, the life of deceased would have been saved. In support of his contentions, he has placed reliance upon the cases reported as:--
(1) Gulzar Khoso v. The State (2006 PCr.LJ 1984).
(2) Muhammad Imran and others v. The State (2008 PCr.LJ 1555).
(3) Muhammad Rafique and 4 others v. The State through Advocate-General.
7. ' Mr. Muhammad Aslam Sipio, the learned counsel appearing on behalf of the State while opposing the grant of bail, adopted the arguments advanced by learned counsel for complainant.
8. ' I have heard learned counsel for the parties and perused the material available on record minutely so also the case-law cited by them.
9. The perusal of F.I.R. Shows that applicant was armed with hatchet and he along with two unknown accused persons who were armed with country made pistol, caught hold of the complainant party but did not cause any injury to complainant or any of the witness. Further no injury to the deceased has been caused by the applicant though he was alleged to have been armed with hatchet. The enmity and motive as stated in the F.I.R. Is attributed to co-accused Ali Nawaz who was annoyed with deceased Din Muhammad because deceased had involved him in the case of theft. Further, after completing the offence, the co-accused Ali Nawaz along with two unknown persons drove away on the motorcycle of complainant party and the applicant/accused proceeded to his village along with hatchet but the said hatchet has not so far been recovered from the possession of applicant. The F.I.R. Has also been lodged after a delay of about 16-1/2 hours for which no plausible explanation has been furnished by the complainant. The allegation against the applicant/accused is general in nature as despite of armed with hatchet, he did not cause any injury to the deceased or complainant party. The fatal shot is attributed to co-accused Ali Nawaz and the question of vicarious liability of applicant/accused could be determined at the trial. Therefore, the case against the accused, requires further enquiry as contemplated by section 497(2), Cr.P.C. The case law relied upon by learned counsel for the applicant are very much applicable in the case in hand.
10. ' In view of the facts and circumstances of the case so also the case law relied upon by learned counsel for the respective parties, I am of the considered view that the case of applicant/accused is one of further enquiry. Accordingly, I allow this bail application and grant bail to the applicant/accused subject to furnishing surety in the sum of Rs,200,000 (Rupees two lac) and P.R.
11. Bond in the like amount to the satisfaction of the learned trial Court.