1. This Bail Application has been filed on behalf of Ghulam Abbas and Mohammad Sami alias Sarno.
2. The facts as disclosed in the F. I. R. Are that complainant Shoukat Ali Rajpar lodged a report on 4th April, 1981 at 1 p. m. Alleging that on 3rd April, 1981 at 2.30 p. m. While going to Shahan Khan Shar, Taluka Faiz Ganj in his Jeep alongwith Mohammad Murad Baladi and Abdul Waheed Pato when he crossed the Weeho Wah bridge and reached the Western side he saw about 7 persons armed with lathis and hatchets standing near the bridge in the north on the inspection path of the canal.
3. Ghulam Abbas was empty handed, Mohammad Samo, Allah Jurio, Salahuddin were armed with- hatchets, Mohammad Rafiq Shar, Sanaullah and one unidentified person were armed with dandas.
4. According to the complainant these persons challenged him to stop and as the Jeep was slowed Sarno attacked upon him with a hatchet with intention to kill him but the hatchet hit the upper portion of the door on the driving side of the jeep and it got hanged there which was snatched by Abdul Wahid who was sitting in the Jeep. Ghulam Abbas fired with countrymade pistol upon him with intent to kill but the pistol did not fire. All the accused then attacked upon him but he sped away the Jeep and they ran after him and threw dandas and hatchets upon the jeep. It is alleged that he did not come for reporting the matter as his uncle Rais Shahnawaz Khan and cousin Balara Khan had gone out and as soon as they returned back on 4th April, 1981, to whom the incident was narrated and on their advice he had come to report to the Police. He also produced the hatchet snatched from Mohammad Sarno. It is alleged that the accused persons are Murids of Pit Sahib of Pagaro and as the complainant had contested the election of Chairmanship of District Council against the son of Pir Sahib, Raja Sain, accused bore enmity and attacked him with intention to kill.
5. The police submitted the final challan 1knd the Civil Judge and F. C. M., passed order dated 22nd April, 1981, whereby the accused were sent up to Sessions Court, Khairpur for trial.
6. All the accused including the applicants made an application for bail before the Sessions Judge who by his order dated 29th April, 1981 granted the bail to all the accused except the applicants I have heard Mr. Zawar Hussain Jaffery for the applicants and Mr. Syed Sarfraz Ahmed, Assistant Advocate-General for the State.
7. Mr. Jaffery the learned counsel for the applicants has contended that from the F. I. R. And the challan produced it is clear that none of the persons on the complainant side have received any injury. He has vehemently argued that the delay in lodging the F. I. R. Of about 23 hours and admittedly having been made after consultation with other persons proves that the case was false and concocted against the accused persons. He has referred to the Mashirnama to show that the dent marks on the Jeep did not establish the prosecution story. He has further contended that the pistol recovered from the applicant No. 1, was not sent to the Ballistic expert to ascertain whether it was in a proper working order.
8. The prosecution story as disclosed in the F. I. R. Suffers from delay which may create doubt about the correctness of the accusation made therein. The explanation given by the complainant prima facie does not seem to be satisfactory as the complainant is said to be a member of the District Council, Khairpur possessing sufficient wisdom and discretion but in spite of this he waited for about 23 hours to consult other persons and then decided to lodge the report. The natural reaction of such incident is that the reports are made immediately after the occurrence and if unreasonable delay is caused without any satisfactory explanation it is likely to create doubt.
9. The incident disclosed in the F. I. R. Shows that when the accused persons challenged the complainant he did not stop the jeep but only slowed it down. The complainant seems to be aware of the identity and names of the accused persons and was also aware of the alleged enmity existing between them and having seen such persons duly armed at a lonely place there was no justification to even slow down the jeep because in such circumstances normally people will try to run away from the scene specially when they are on jeep and the accused persons were on foot.
10. At this stage without commenting upon the merits of the case the main consideration for grant of bail is whether there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with transportation for life. As observed in Noor Samand v. State (1968 SCMR 1061) no general rule can be laid down in this behalf for determina--tion whether reasonable grounds appear for such a belief will depend on the fact of, each case. In Ghulam Yasin v. State (1963 SCMR 1308) it was held that mere accusation of a non-bailable offence would not disentitle an accused from being bailed out if the law allows it. The law confers wide discretion--ary power on Court to grant or refuse bail in non-bailable offences but such discretion should be exercised in judicial and proper manner with due regard to the facts and circumstances of the case.
11. In order to ascertain whether reasonable grounds exist or do not exist the Courts are not required to probe into the merits of the case. From the material placed before them by the prosecution they have to see whether any tangible evidence is available against the accused which left, unrebutted may lead to inference of guilt.
12. The learned Sessions Judge has granted bail to all other accused persons except the applicants mainly on the ground that Ghulam Abbas had fired with a pistol whereas Muhammad Samo attacked warn a hatchet. The admitted fact is that attempt was made to fire but no bullets were fired froth the pistol itself. So at best it can be an attempt to fire. In the case of Dhani Bux v. The State (PLD 1964 Kar. 264) in a case under sec--tion 307, P. P. C. It was held that "from the mere fact that a pistol shot was fired it cannot be said that the only inference which follows is that the intention was to kill. Such a shot can be fired in a fit of temper. It can also be used in the same way for causing merely a hurt and it may even be used in self-defence with no intention to kill and so on". This dictum was laid down by Justice A. S. Faruqui while hearing a criminal appeal but these principles can equally be applicable while considering a bail application. The facts in F. I. R. Disclose that either the pistol was not in working condition or the same did not have any bullets. The pistol has been recovered but no bullets from inside the pistol were found. The pistol has not been sent to the Ballistic expert. In the circumstances of the case at this stage it is difficult to say that the pistol was in working order, loaded with bullets and was fired with intention to kill the complainant.
13. Now taking up the role assigned to Mohammad Samo, Mr. Jaffery for the applicants has contended that in the F. I. R. An improbable story has been concocted. He has particularly referred to the allegation that Samo attacked upon the complainant with hatchet which hit the upper portion of the driving side and it got hanged which was snatched by Abdul Wahid who was sitting in the Jeep.
14. The learned counsel has pointed out that the frame of the jeep including its door are made of steel and canvas and therefore it is difficult that after hitting the door the hatchet will entangle into it as it can happen if it would have beers made of wood. The mashirnama also refers to the dents on the door of the jeep as well as on the bonnet of the jeep but at this stage considering the facts and circum--stances of the case it will be risky to entirely rely upon the same. Mr. Jaffery has further contended that no one has received any injury which lends support to the contention that the report has been lodged on false allegations merely to harass the accused due to enmity. In the facts and circumstances of the case the statement of the complainant as contained in the F. I. R.
15. Does neither inspire confidence nor appears to be reliable. In these premises the applicants are entitled to bail.
16. Mr. Syed Sarfraz Ahmed the learned Assistant Advocate-General has stated that this is a case which requires further enquiry under section 497, A (2), Cr. P. C. He has not opposed the grant of bail application. In view of the facts and circumstances of the case and without expressing any opinion on the merits of the case I allow bail to the applicants subject to their furnishing security in the sum of Rs. 10,000 each with P. R. And two sureties in the like amount to the satisfaction of the Sessions Judge,. Khairpur.