' SYED MUHAMMAD FAROOQ SHAH, J.---Bail has been sought for applicants Koombho son of Devo and Daya Ram son of Hathi who were booked in Crime No,134 of 2012 of Police Station Umerkot, pending trial of Case No,247 of 2012, in the Court of learned Additional Sessions Judge, Umerkot for offences punishable under sections 302, 324, 114, 504, 147, 148 and 149, P.P.C.
2. The contents of the F.I.R. Reads as under:-- "Complaint is that I and my brother are Haris on the lands of Soofi Murad Ali. Today in the evening I along with brother Laloo, relatives Gulchand and Premchand were going to our cultivated lands.
When at 7-30 p.m., we reached link road, Soofi Shakh Mori which is just by side of our lands and leads to village Zubair Sehto where each namely Ahmed son of Zubair Sahto armed with gun, Khalid son of Mutufa with hatchet, Dayaram son of Hathi Kolhi with lathi, Alam with lathi, Velo with hatchet, Mansingh with lathi all sons of Jovo Kolhi, Konbho son of Devji Kolhi, Bhagwano son of Menhro and Teekmoon son of Moti Kolhi were standing there. They asked us that you were earlier prohibited that Haris of Faqeer Murad Ali should not come here. We replied that we cultivated this land and are haris on this land and we do not go towards your side. Upon which Ahmed while abducting us instigated not to spare us. On such instigation, Khalid caused sharp side of hatchet blow on right side of my head while other caused lathi and hatchet blows to brother Lalo, Gul Chand and Premchand on their heads and other parts of bodies. We raised cries which attracted to brother Chanesar and Saamto and Lalo Kolhi. On reaching of brother Chanessar near Ahmed made straight fire at him with his gun with an intention to kill who fell down on the ground. On falling of Chanessar above accused persons went away while abusing. We saw that Chanesar had gun shot injuries/holes on head and right side of forehead and blood was oozing. Thereafter, we informed to son of Zamindar namely Imdad who brought vehicle and Chanessar was taken to Civil Hospital, Umerkot therein whereafter, examination doctors informed that Chanessar has died.
Thereafter, doctor did bandage over my injuries. Thereafter, I have come to lodge the report that accused Ahmed killed Chanessar by firing; accused Khalid caused sharp side of hatchet injuries on my head with intention to kill and other accused persons in furtherance of their common object formed unlawful assembly and caused injuries to Laloo, Gulchand and Premchand. Investigation be made."
The applicants/accused were arrested by police and after usual investigation, challan was submitted.
4. I have heard Syed Madad Ali Shah, learned counsel for the applicants, Mr. Shahzada Saleem Nahyoon, A.P.-G. For the State and also perused the material available on the record and case-law cited by learned counsel for the applicants.
5. At the very outset; learned counsel for the applicants contended that applicants have been implicated in this case falsely and from the averments of the F.I.R., there are general allegations against the applicants and no specific allegation of overt act has been assigned to the applicants.
He further contended that from the contents of F.I.R., it appears that the applicant Koomboh was found present empty handed at the place of incident and another applicant Daya Ram was holding lathi. The allegation of causing sharp side hatchet injury by co-accused Khalid Sahto is in conflict with the medical evidence. Contents of F.I.R. Reveals that accused Ahmed made straight fire on the person of Chanesar, who died in result of gunshot. Learned counsel further contended that common intention/common object or vicarious liability, if any, of the applicants is to be determined at the trial, till then they are entitled to bail. It is next contended that injuries attributed to the injured persons falls within the ambit of bailable offences and there is no private witness of the alleged incident. In support of his contentions, learned counsel has relied upon the cases reported as:--
(i) Ehsanullah v. The State (2012 SCM R 1137).
(ii) Muhammad Asif v. The State (2012 YLR 550).
(iii) Muhammad Murad v. The State and another (2012 YLR 1309).
(iv) Attaullah and 3 others v. The State and another (1999 SCM R 1320).
(v) Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125).
(vi) Fida Hussain and another v. The State (2011 YLR 1697).
6. On the other hand, learned A.P.-G. Conceded bail to the applicant Koomboh who was found empty handed at the place of occurrence but requested that applicant Daya Ram was holding lathi in his hand, attributed injuries to the injured persons which shows his common intention to commit the alleged offence.
7. In the case of Ehsanullah v. The State (2012 SCM R 1137), the honourable Supreme Court held that:- "Accused was nominated in F.I. R. But no specific injury to any person had been attributed to him and only generalized and collective allegation was levelled against him. Accused was admitted to bail."
' In Para 4 of the said judgment, it was held that:- "It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace or concession and in such a case mere absconsion of the relevant accused person may not be sufficient to refuse bail to him. A reference in this respect may be made to the cases of Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182), Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Qamar alias Mitho v.
The State and others (PLD 2012 SC 222)."
' In the case of Muhammad Asif v. The State (2012 YLR 550), it was held that:---"Accused had not inflicted any injury on the person of any of the deceased. Pistol was not recovered from the possession of accused. During investigation, accused had been declared innocent by the Police.
Accused was admitted to bail in circumstances."
' In the case of Muhammad Murad v. The State and another (2012 YLR 1309), it was held that:--"
Accused was not stated to have caused any injury to the deceased. According to F.I.R. Accused had caused hatchet blows to a prosecution witness, which were found simple in nature by the Doctor. Vicarious liability of accused with his co-accused could not be looked into at bail state."
' In the case of Attaullah and 3 others v. The State and another (1999 SCMR 1320), it was held that:---"Accused were not alleged to have caused any injuries to the deceased. Order of High Court cancelling bail of accused was set aside in circumstances and that of Sessions Court rightly allowing bail to them was restored."
' It was held in Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125), by the honourable Court that:---" Accused despite being allegedly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons. Question whether the accused in such circumstances shared common intention with co-accused who had caused death of the deceased needed further inquiry. Accused were admitted to bail in circumstances."
' In the case of Fida Hussain and another v. The State (2011 YLR 1697), it was held that:---"Role assigned to accused persons was of causing simple injuries to the prosecution witnesses and no injury was attributed against accused persons to have been caused to the deceased.No active role had been assigned to accused persons in causing death of deceased. They were admitted to bail in circumstances."
8. From the evidence brought by the prosecution on record including the contents of the F.I.R., it transpires that role assigned to the applicant Koomboh was nothing except his presence at the place of occurrence and that's why the learned A.P.-G. Conceded bail to him. So far as the role of Daya Ram in commission of offence is concerned, he was holding lathi in his hand and if at all, caused blow to the injured persons which injuries are falling within the definition of bailable offences and such facts depicts that he was having no intention to commit A the murder of deceased Chanessar. The incident appears to be of sudden flare up, during which both the sides caused injuries to each other and unfortunately in this incident one person namely Chanessar died due to fire arm injuries therefore, since no active role has been assigned to the applicant Daya Ram as well in causing death of deceased coupled with delay in lodging the F.I.R. In the light of case-law cited by learned counsel for the applicants, the case of present applicants/accused requires further inquiry.
9. Whatever mentioned above, the applicants are entitled for bail at this stage. Accordingly, they are admitted to bail subject to their furnishing solvent surety in the sum of Rs,200,000 (Two lac) each and P.R Bonds in the like amount to the satisfaction of the trial Court.