1. ' SAJJAD ALI SHAH, J.---Through these applications Applicants Pervaiz, Akram, Ashiq in Bail Application No, 388 of 2009, Mir Muhammad in Bail Application No,315 and Mehboob in Bail Application No,355 of 2009 seek bail in Crime No,27 of 2008 under sections 302, 324. 337-H(ii), 147, 148, 149, 114, P.P.C. Registered at Police Station Sakrand.
2. ' Complainant Ghulam Shah Laghari on 8-2-2008 stated that while he along with his brothers Abdul Rasheed. Tanveer, Younis and some others were playing Volley Ball when Khan Muhammad Dahiri along with Abdul Hafeez and Imdad came there and stated that they have come to revenge the insult which the complainant has caused to them and consequently Khan Muhammad Dahiri instigated his companions, who were sitting in vehicles, not to spare complainant and kill him.
3. Consequently, Mehboob fired upon complainant from his pistol which hit on his thigh, his brother Abdul Rasheed fell on the complainant to save him and Abdul Razzak Khaskheli fired which hit Abdul Rasheed on his forehead who died. Khair Muhammad caused hatchet blow on the back of Abdul Rasheed. Younis and Tanveer were also injured by Safar Khaskheli. Mir Muhammad directly fired on the complainant party whereas Pervaiz and Akram armed with pistols while Ashiq armed with double barrel gun along with 20/25 guards were sitting in vehicles.
4. ' All present agree that the role of applicants Pervaiz, Akram and Ashiq is only that they were armed and sitting in the vehicles with 25 guards whereas Mehboob fired at Ghulam Shah, which hit him on his thigh and Mir Muhammad fired from his D.B Gun at the complainant party which hit none.
5. ' Mr. Abdul Sattar Kazi learned Counsel appearing for applicant Mehboob contends that in accordance with the allegations applicant Mehboob has fired single shot on the non-vital part of complainant which goes to prove that he had no intention to kill the complainant. It was next contended that it is a case of two versions as the accused party has also lodged Crime No,28/2008 under sections 324, 337-H(ii), P.P.C. Against the Complainant party and till it is determined that which version is correct the applicants are entitled to concession of bail. It was lastly contended that the Applicant is behind the bars since last two years and not a single witness has been examined therefore the Applicant may be enlarged on bail. In support of his contention that in cases of counter versions and where the injury is inflicted on non-vital part of the body, the accused may be admitted to bail. Mr. Kazi has placed reliance on the judgment of the apex Court in the cases of Muhammad Farhad Siddiqui v. The State (PLD 2009 SC 58) and Faraz Akram v The State (1999 SCM R 1360).
6. ' Mr. Nandan A. Kella Advocate for Applicant/accused Mir Muhammad contends that the allegation against Mir Muhammad is only of ineffective firing despite no recovery has been effected and the Applicant is behind the bars since last 2 years and therefore is entitled to the concession of bail.
7. ' Likewise Mr. Nisar Ahmed Durrani appearing for the Applicants/accused Pervaiz. Akram and Ashique has contended that the allegation against the Applicants is that they duly armed were sitting in the vehicles, no role has been assigned to them and no overt act has been attributed to them therefore, they are entitled for grant of bail.
8. ' On the other hand Mr. Madad Ali Shah learned Counsel appearing for Complainant contends that Crime No,28/2008 reported by one Khadim Hussain stated to be counter case stands disposed of as false and consequently there is no cross version on the basis whereof the Applicants can seek concession. It was next contended that the Applicants have been named in the F.I.R. With specific roles therefore, are not entitled to the concession of bail. Per learned Counsel, mere existence of cross case cannot be a ground for grant of bail or where the counter F.I.R. Has been cancelled after investigation it could not be considered at bail granting stage as it would amount to deeper appreciation and might prejudice the case of either party. In support of his contention reliance has been placed on the judgment of apex Court in the case of Syed Maqbool Muhammad v. The State (2005 SCM R 635) and Arifuddin v. Aamil Khan (2005 SCMR 1404 Mr. Shah next contended that single shot fired by Mehboob was sufficient to kill the Complainant and non-repetition of firing at the most would mean that the accused had no intention to brutally kill the Complainant. Reliance has been placed on the order of this Court in the case of Amjad Jawaid v. The State (PLD 2007 Karachi 336). Learned Counsel further placed reliance on the order of this Court in the case of Gulzar Khoso v. The State (2006 PCr.LJ 1984) where this Court declined bail to a person who was merely present at the place of incident and admittedly did not fire on the Complainant party. As to the case of Applicant/accused Pervaiz, Akram. And Ashiq, Mr. Shah has placed reliance on the judgment of apex Court in the case of Mamaras v. The State (PLD 2009 SC 385) and contends that the Applicants were present at crime scene duly armed sharing common intention and therefore were liable as much as the accused who had fired therefore not entitled for concession of bail.
9. ' Likewise learned Assistant Prosecutor-General Sindh while opposing the grant of bail has submitted that a gun has been recovered from Mir Muhammad, hatchet from Khair Muhammad, Ghulam. Shabbir and Safer along with blood-stained clothes, five empties of .30 bore and two empty cartridges of .12 bore have been recovered therefore the Applicants are not entitled to the concession of bail and therefore their applications are liable to be dismissed.
10. ' I have heard the learned Counsel for the respective parties. Perused the record as well as case- law cited at bar.
11. ' First of all I will take up the case of Applicants/accused Pervaiz, Akram and Ashiq, the allegation against them verbatim are reproduced herein below:-- "Pervez son of Allah Ditto was armed with Pistol, Akram son of Ghulam armed with Pistol and Ashique alias Makar son of Alam armed with double barrel Gun and 20/25 other Guards who were not known were sitting inside vehicles."
12. Admittedly no overt act has been attributed to these three Applicants, there are no allegations in the F.I.R. That they abetted the commission of crime, the very fact that during the entire episode these Applicants though armed kept sitting in the vehicles makes a case of further inquiry regarding determination as to whether they were sharing common intention. In the circumstances, the dicta laid down by apex Court in the case of Mamaras (supra) while declining the bail to an abettor that it was not possible to declare that every person accused of the commission of an offence punishable under section 109, P.P.C. Was entitled to the grant of bail, irrespective of the merits of the case without demanding satisfaction of the conditions prescribed by section 497(2), Cr.P.C., and only because the allegation against him was one of abetting the commission of an offence is not attracted even otherwise in that case a co-accused has made judicial confession against rest of accused seeking bail.
13. ' As to the case of Gulzar Khoso, in that case the victim was shot dead by one of the three brothers in judicial custody in Court premises. All the three brothers were caught on spot duly armed without an explanation of their presence in the Court premises therefore the bail was declined by holding that reasonable ground exists to believe that accused played their role in a pre-planned murder and shared common intention, whereas in the instant case no such finding at this juncture can be safely given. It is further important to record that the Applicants are behind the bars for the last two years and the trial has not yet commenced. In the circumstances all the three Applicants are found entitled to the concession of bail.
14. As to the case of Applicant Mir Muhammad, since he has fired directly on the complainant party and not only that gun has been recovered from him but also the empties. In the circumstances. I do not find him entitled to the concession of bail likewise Applicant Mehboob though fired a single shot from his pistol which hit the complainant on the non-vital part of his body but at this juncture it cannot be said that he had no intention to kill the complainant. The brother of complainant was shot dead while he fell down on the complainant in an attempt to cover him up. The plea taken on behalf of applicant regarding the case of two version falls to ground as the complainant has placed on record order of the Magistrate passed somewhere in the year, 2008 whereby the disposal of the counter case was accepted. No case for bail is made out. The application of applicants Mir Muhammad and Mehboob consequently are dismissed.
15. In view of what has been discussed above, applicants Pervez Akram and Ashique are granted bail subject to furnishing solvent surety in the sum of Rs,100,000 (One hundred thousands) each and P.R bond in the like amount to the satisfaction of the trial Court. The application moved by the father of accused Akram, which was subsequently converted into bail application and numbered as Criminal Bail Application No,S-266 of 2009 also stands disposed of.