1. ' SALMAN HAMID, J.---This bail application has been moved by the applicant under section 497, Cr.P.C. After his bail application moved before the learned 2nd Additional Sessions Judge, Larkana was dismissed mainly on the ground that the incident had taken place in broad-day-light at a public place and that the accused has been specifically mentioned in the F.I.R. And that after the date of incident i.e, 26-12-2007, the accused absconded and was arrested on 4-12-2009 that is about two years after the date of incident. The other factor which prevailed upon the learned Judge was that the accused had shared common object while committing the murder of the deceased Naeem Ahmed Gaad. The affidavit of complainant Ghulam Abbas, exonerating the accused from the commission of the offence was disregarded by the learned Judge by relying upon the case reported in PLD 1997 Supreme Court 347 wherein it was held that the trend that eye- witnesses take a somersault and give statements which were different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail be deprecated.
2. ' The learned Judge was of the opinion that the accused/applicant is tentatively connected with the commission of offence which offence , falls under the prohibitory clause of section 497, Cr.P.C., and therefore the bail was refused.
3. ' Mr. Muhammad Ashique Dhamrah learned counsel appearing for the applicant has argued that since the complainant Ghulam Abbas and the other prosecution witness namely Shah Nawaz have given their affidavits to the effect that the name of the applicant/accused was given by them due to inadvertence and suspicion and the fact that he was not amongst the persons who fired upon the deceased creates doubt that he was at all present on the date of incident at the place and that he had fired upon the deceased. It was further urged by the learned counsel for the applicant/accused that as many as seven accused persons are alleged to have fired from their respective weapons on the deceased but only three fires are shown to hit the body of the deceased and therefore at this stage it is difficult to determine as to who specifically fired upon the deceased and/or whose fire shot proved fatal, more particularly when the complainant and Shah Nawaz have already sworn affidavits that the applicant/accused was not present there at the time of incident. In support of his contention, firstly the learned counsel relied upon the case of Muhammad Nawaz alias Najja v. The State 1991 SCMR 111, wherein the honourable Supreme Court of Pakistan granted bail to the accused in the circumstances as available in the present case when the prosecution witnesses appeared. In Court and stated to the effect that the accused was not implicated in the occurrence of the offence. The other case that was cited by learned counsel was the case of Shah Murad v. The State 2002 MLD 1429, wherein ;again the complainant therein exonerated the accused from the commission of the offence was taken out as implicated in the earlier story and given in the F.I.R. An affidavit was given that accused was wrongly named. The bail application was allowed under the circumstances. Learned counsel also relied upon the case of Zafar Iqbal v. The State PLD 2004 Karachi 566, wherein first bail application which was moved on behalf of the accused was dismissed and when subsequent bail application was moved, it was allowed by the Court by looking into the affidavit to the effect that the complainant therein exonerated the accused from the offence with which he was charged. The Court in the above cases while appreciating the affidavit of complainant, granted bail to the accused.
4. ' Mr. Naimtullah Bhurgari, learned State. Counsel submitted that since the complainant namely Ghulam Abbas and prosecution witness Shah Nawaz have sworn their affidavits by exonerating the applicant from the commission of offence, he has no objection if the bail is granted.
5. ' Looking at the facts and circumstances of the case and the precedent cited by the learned counsel appearing for the applicant and no objection given by the learned State Counsel, I am of the view that a case for bail has been made out by the applicant as contemplated under section 497(2), Cr.P.C. Since it has come on record that the presence of the accused was doubtful at the place of incidence, the benefit of bail as a matter of right should go to accused. It may also be noted that bail cannot be withheld as punishment on the ground that the offence with which accused is charged is non-bailable and in such cases bail A may not be claimed as a matter of right but if it is shown to the. Court that a case of bail has been made out which in the present case prima facie has been demonstrated, the accused becomes entitled to be enlarged on bail. Looking at these circumstances and the precedent cited by the learned counsel for the applicant, bail is granted to the applicant on his furnishing solvent surety in the sum of Rs, 200,000 and P.R bond in the like amount to the satisfaction of the learned trial Court.
6. ' Bail application stands disposed.