1. ' AQEEL AHMED ABBASI, J.--- The F.I.R. No,102 of 2009 was registered on 19-4-2009 at 2200 hours at the instance of complainant Syed Roshan Ali Shah at Police Station, Ratodero District Larkana against accused persons named therein under section 302/34, P.P.C. The contents of the F.I.R. Are reproduced for the sake of brevity and relevance as under:-- "It is complaint that my son namely Syed Ghulam Mustafa Shah aged about 24/25 years, runs Kiryana Shop in village Wadhapur. On the matter of not giving credit one Ashraf son of Shandino Ghanghro used to threat that if the delay or refuse is made in giving credit he will kill him. Today at sunset time my cousin Syed Nawab Ali Shah son of Syed Hazoor Shah, my father-in-law Ali Akbar Shah son of Syed Nabi Shah resident of village Wadhapur Taluka Ratodero were sitting on the shop of my son. My son went to home and was returning to home and when at about 7-30 p.m. Accused Ashraf son of Shandino, (2) Shandino, (3) Sono, both sons of Ashraf, all by caste Ghanghro resident of Wadhapur, Taluka Ratodero, armed with guns came and raised Hakal that they will not leave Syed Ghulam Mustafa Shah and will kill him, while saying so they straightly fired upon my son.
2. Before our sight accused Ashraf Ghanghro fired which hit my son below the left arm who fell down while crying. While seeing him falling down all three accused ran away towards their houses and my son succumbed to injuries and died on the spot. I left the above witnesses over dead body and now came and lodge the F.I.R. That above accused due to reason discussed above, conspired with each other, duly armed with weapons fired at my son Syed Ghulam Mustafa Shah and killed him. I am complainant investigation be made."
3. ' The applicant/accused was arrested on 29-4-2009 and applied for post-arrest bail before the learned Additional Sessions Judge, Ratodero in Criminal Bail Application No,97 of 2009 who vide order dated 23-11-2009 dismissed the said bail application. Being aggrieved by such order the applicant/accused has filed present bail application.
4. ' The learned counsel for the applicant submitted that on bare perusal of the F.I.R. It appears that though the applicant has been nominated in the F.I.R. But no direct role has been assigned to him for having committed an offence under section 302/34, P.P.C. Whereas such role has been assigned only to accused Ashraf on whose firing it has been alleged that the deceased received the injury and eventually succumbed to death. Learned counsel further submitted that the applicant has been falsely implicated in the instant case who is innocent. According to the learned counsel the only role which has allegedly been assigned to the applicant is of accompanying the main accused Ashraf and as per allegations in F.I.R. His role is of ineffective firing which did not result into any injury or death of the deceased. It has been further argued that the case against the applicant, besides being false, is a case of further enquiry and of reasonable doubt in committing the alleged offence. Learned counsel further argued that the learned trial Court fell in error by considering the case falling within the purview of common intention of the accused to commit the crime. It has been argued that looking at the facts and circumstances of the case and the initial stage of the trial the intention of the applicant cannot be presumed at this stage. The learned counsel has placed reliance on the following cases:
(1) Muhammad v. The State 1998 SCM R 454, (2) Faraz Akram v. The State 1999 SCM R 1360, (3)
5. Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125, (4) Muhammad Haneef and another v.
6. The State PLD 2006 Kar. 470, (5) Ghulam Dastagir and others v. The State 2007 YLR 3297 (Karachi),
(6) Taju v. The State 2006 M LD 1334 and (7) Waryam v. The State 2006 PCr.LJ 1611.
7. ' Learned counsel argued that this is a fit case where applicant may be granted concession of bail as no useful purpose will be served by keeping an innocent person behind the bars.
8. ' Conversely, the learned State counsel opposed the grant of bail on the ground that the applicant has been nominated in the F.I.R. It has been further contended that the applicant was present at the site with common intention to commit the alleged offence. According to learned State counsel there is recovery of one unlicensed SBBL shotgun with two live cartridges. Consequently, the learned State counsel stated that the trial is at initial stage, therefore, it will be premature to release the applicant/accused on bail at this stage.
9. I have heard the arguments of both the learned counsel perused the contents of F.I.R. And the available record. There is no doubt that the accused has been nominated in the F.I.R. However, admittedly, the role assigned to the accused in F.I.R. Is of ineffective firing. It is pertinent to, mention that as per medical report referred by the learned State Counsel, the cause of death is of wounds of pallets from a cartridge which as per contents of F.I.R. Was allegedly fired by accused, namely, Ashraf. It is also pertinent to mention that there is recovery of only one empty cartridge at the scene of offence. Keeping in view the facts, I am of the opinion that the case of the present applicant/accused is of further enquiry and is not free from reasonable doubt, the benefit of which must go to the accused person. I am fortified in my view from the judgment of the Honourable Supreme Court in the case of Faraz Akram v. The State 1999 SCM R 1360, wherein the Honourable Supreme Court has ruled as under:--- "(5) In support of this petition, it was contended that no ,overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered.
10. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do. The circumstances thus revealed that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr.P.C. Accordingly, we convert this petition into appeal, allow the same and direct that the petitioner shall be released on bail provided he furnishes security in the sum of Rs, 2,00,000 with one surety in the like amount to the satisfaction of the trial Court."
11. ' In the case of Muhammad v. The State 1998 SCM R 454 the Honourable Supreme Court has ruled as follows:--- "After hearing the learned counsel for the parties and reading the record with care, we are of the opinion that a case for interference has been made out because no injury was attributed to the petitioner during the occurrence. It is alleged that he ineffectively fired. This was a case of further inquiry. The petitioner is accordingly, admitted to bail in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of A.C/Deputy Magistrate, Mianwali by converting his petition appeal. The petition, thus, succeeds and is allowed."
12. ' In another case of Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125 the honourable Supreme Court has ruled as follows:--- "The cases of the remaining accused, namely, Ghulam Raza, Ghulam Shabbir and Zafar Iqbal, however, are distinguishable as in spite of being allegedly armed with deadly weapons like rifle, gun and hatchet, they only caused simple blunt injuries to some of the P.Ws using the wrong side of their weapons. In these circumstances, whether they share common intention with those who caused death of deceased Siddique Umar needs further enquiry."
13. ' Similarly in the case of Ghulam Dastagir V. The State 2007 YLR 3297 learned Judge of this Court after placing reliance in a number of judgments of the honourable apex Court has held that in case of ineffective firing and on mere allegation of common intention, bail cannot be refused as to judge common intention further enquiry is required. The same view has also been expressed in the above cases which have been relied by the learned counsel for the applicant.
14. Under the circumstances, I am of the view that the applicant is entitled for the concession of bail.
15. Accordingly, he may be released on bail on furnishing solvent surety in the sum of Rs,200,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
16. ' Needless to say that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced while deciding the case on merits.