' MUHAMMAD TASNIM-J.---Through this bail application, the applicant has challenged the order passed by Learned II-Additional Session Judge, Khairpur dated 5-5-2010 passed in Session Case No,188 of 2010 in F.I.R. No,25 of 2010 at Police Station Gambat.
2. The case as set out by the prosecution in the F.I.R. Is as under:-- "Complaint is that we are nine brothers inter se. Out of whom brother Ashique Ali was aged about 34/35 years who was representative of Mehran T.V Taulka Gambat. Today I, brother Ashique Ali and brother Ali Dino were returning from Gambat together and going to Abul Cannal side for our village by foot and when at about 11-45 a.m., reached in front of Post Office, we saw and identified (1)
Barkat Ali son of Muhammad Ismail Narejo armed with Country-made pistol, (2) Allah Bux son of Muhammad Ismail Narejo, (3) Ali Hassan son of Wahid Bux Narejo being armed with pistols, all residents of Adur Narejo, Taulka Gambat were on the motorcycle, they at once intercepted and stood in front of us. Ali Hassan was driving the motorcycle, Allah Bux was sitting in the middle and Barkat was sitting on his back side. On coming accused Barkat Ali challenged and said to brother Ashique Ali that "You have got me dismissed from service and today I will not spare you and will kill you". Saying so accused Barkat Ali with intention of murder made direct fire with the country-made pistol, which hit him on the left eye and went through and through. Ashique Ali fell down due to receiving fire. Other accused i.e, Ali Hassan and Allah Bux made direct fires with their pistol upon me and brother Ali Dino with intention of murder but we saved ourselves by laying on the around and raised cries and which brother Muhib Ali came running there while raising hakals, who also saw and identified the accused persons and other persons standing at the adjacent places also made hakals, where-after all the three accused boarded on the motorcycle and ran away towards western side. Thereafter I and above witnesses saw that brother Ashique Ali had sustained injury on the left eye through and through, was bleeding and within our sight died. Thereafter leaving the above witnesses over the dead body, have come here and make complaint that due to above grudge the accused persons in furtherance of their common object, being armed with country- made pistol, accused Barkat made direct fire of his country-made pistol upon brother Ashique Ali and committed his murder and accused Ali Hassan and Allah Bux made direct fires upon me and brother Ali Dino with intention of murder but we saved ourselves by laying on the ground. I am complainant justice be done."
3. Mr.Farman Ali Kanasiro, learned counsel for the applicant has submitted that three persons namely (1) Barkat Ali, (2) Allah Bux and (3) Ali Hassan were implicated and it was shown in F.I.R. That all the three were having pistols. He further argued that specific role has been assigned to Barkat.
However no role has been assigned to Ali Hassan ("present applicant") except that he made firing upon the complainant but it was ineffective. He has further argued that there is no motive against the present applicant and applicant is entitled to bail. He further submitted that allegedly ineffective firing was made and no injury was caused to anyone. He has further argued that with regard to common intention that can only be determined once the evidence of the prosecution is recorded. He further says that alleged incident had taken place at a thickly populated place but no private person from the locality has been cited as a witness; on the contrary all the brothers have been cited as witnesses on the part of the prosecution. He further says that five -private persons who were allegedly present at the scene had tiled their affidavits denying the allegation made in the F.I.R. Before the learned trial Court. Learned counsel in the end submits that presence of the present applicant at the scene is also doubtful and applicant is entitled to be released in terms of section 497(2), Cr.P.C.
4. Learned counsel in support of his contention has relied upon the cases of Jaffar and others v. The State 1980 SCM R 784, Yaroo v The State 2004 SCM R 864, Muhammad v. The State 1998 SCM R 454, Ali Shah v. The State and another 2007 YLR 935 and Waryam v. The State 2006 PCr.LJ 1611.
5. As against above, Mr.Manzoor Ahmed Larik, learned counsel for the complainant has vehemently opposed the grant of bail. Learned counsel for the complainant submits that learned trial Court has taken all the factors into consideration and has rightly denied the concession of bail to the present applicant. He says that recovery of pistol was affected from the present applicant.
However, lie admits that no ballistic expert report is available on record. He further is that case falls under the Prohibitory Clause and present applicant is not entitled to bail.
6. On .The other hand Mr.Shyam Lal Ladhani, learned A.P.-G. Has supported the arguments advanced by the learned counsel for the complainant and he further submits that as many as eight empties were recovered from the place of wardat and one cartridge of Desi pistol. He also argued the point of vicarious liability of the applicant involved in the case. He also submits that order of the learned trial Court is perfectly correct; and it does not call for any interference by this Court; and in the end lie says that bail application be rejected.
7. Learned A.P.-G. In support of his contention has relied upon the case of Munawar v. The State reported in 1981 SCMR 109.
8. I have heard learned counsel for the parties and have gone through the record so also the case law cited at the bar.
9. From the perusal of the F.I.R. It is apparent that role of firing and causing injury has been assigned to Barkat. However; role to present applicant has been assigned only for making direct fire but it is admitted position on record that no injury whatsoever was caused to anyone. Similar question of making firing and causing no injury to any one has come up for consideration, before the Hon'ble Apex Court in case of Mohammad v. The State 1998 SCM R 454 wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "After hearing the learned counsel fir 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."
10. Similarly in the case of Waryam v. The State 2006 PCr.LJ 1611 though the facts of the case in the reported judgment were little distinguishable. In the reported judgment firing was made in the air but in the present case allegation is that direct fire was made, however; fact remains that no injury was caused to anybody. In the circumstances learned Single Judge of this Court had admitted the applicant to bail on the ground that though the firing was made but it was ineffective and no injury was caused to anybody.
11. With regard to filing of affidavits by five independent persons alleged to have been present at the scene before the learned trial Court same can not be taken into consideration at this stage as it is settled law that at the bail stage deeper appreciation of evidence can not be gone into but only Court has to see as to whether applicant/accused is prima facie connected with the commission of offence or not.
12. With regard to presence of the present applicant at the place of wardat there is no material available on record to negate the version of prosecution in the F.I.R.
13. With regard to the contention raised by the learned A.P.-G. That bail may not be granted to the present applicant as he is equally responsible in the commission of offence and an innocent person has died. Such question of vicarious liability can only be determined once the evidence of the prosecution is available on record.
14. From the above even if presence of applicant is accepted and his firing is also accepted but admittedly no injury was caused to any one. In this view of the matter, this case calls for further inquiry as contemplated under section 497(2), Cr.P.C. Accordingly I admit the present applicant to bail subject to furnishing of his solvent surety in the sum of Rs,2,00,000 (Rupees Two Hundred Thousand Only) and on execution of personal bond of the like amount to the satisfaction of the trial Court.