1. ' The two applicants Amir Bux and Sher Beg Khalhoras have applied for bail. They are facing charges under sections 302, 307, 148, 149, P.P.C. And the trial has proceeded before the learned IIIrd Additional Sessions Judge, Sukkur.
2. ' The brief facts of the case are that on 11-4-1983 at about 10-00 a.m. When complainant Muhammad Bux and his 'cousin Mehrab were returning to their house after ploughing their field, they were attacked by five persons Murad, Imamdin, Amir Bux, Sher Beg and Rafiq. Murad and Imamdin were armed with hatchets while Amir Bux, Sher Beg and Rafiq were armed with single barreled guns. To quote the complainant's version in the F.I.R. "The complainant and his cousin Mehrab challenged them whereupon the gun-men fired gunshots at them which hit Mehrab who collapsed, that again all the three persons fired shots at them and the complainant was struck on the right arm, thigh and stomach, that the complainant raised cries and the gun reports and cries attracted Habib, Bakhshan, Manzoor and other persons who came running and saw the offenders, that the accused then decamped in the western direction after raising slogans".
3. ' All the alleged assailants, namely, Amir Bux, Sher Beg, Imamdin and Murad have been challaned and put on trial for the murder of Mehrab and causing grievous injuries to the complainant Muhammad Bux. These four accused moved bail application before the learned Sessions Judge, Sukkur and by an order, dated 9th of June, 1983 Imamdin and Murad were granted bail. The request for bail of Amir Bux and Sher Beg the two present applicants was, however, rejected. The applicants may be reproduced from the order of the learned Sessions Judge:- "While I agree with the learned counsel, that case of applicants Imamdin and Murad needs further inquiry on to their guilt, the case of rest of the applicants is on different footings. They are attributed firing which has resulted in the death of Mehrab and grievous hurt to the complainant. Five injuries have been found on the persons of deceased and equal number of injuries on the person of the complainant. These injuries are on various parts of the body which indicate that more than one fire was Made on each of the victims and participation of more than one person is possible. It is apparent that persons firing at others with guns, prima facie intend to commit murder. The injuries caused to the victims are to be seen in the light of circumstances, in which same are caused. Them was previous enmity between the parties on account of which two murders were committed. It cannot, therefore, be said that the three persons armed with guns had fired at the complainant and the deceased in order to scare them or to cause them simple hurt. The seat of injuries in the case of deceased Mehrab is vital part of his body. Anybody firing, despite of its result, cannot escape the constructive liability. The offence is punishable with death. From accused Amir Bux crime weapon has also been recovered. The evidence in the hands of prosecution tends to connect applicants Sher Beg and Amir Bux with the crime."
4. ' On these considerations the bail of these two applicants was rejected. Thereafter the statement of doctor Abdul Rashid who conducted the post-mortem examination of the deceased Mehrab and also examined Muhammad Bux complainant has been recorded. The post-mortem report discloses the following:- "From external and internal examination of the dead body of the deceased Mehrab son of Allandino I am of the opinion that the death was due, to shock and haemorrhage as the result of injuries mentioned above i,e, injuries No,2 and 3 individually and all collectively were sufficient to cause death in ordinary course of nature."
5. ' In his cross-examination he has stated:- "Death of Mehrab can be the result of one gunshot. They were fired by less than 10 feet."
6. ' After the recording of this evidence of the doctor a fresh application was moved on behalf of these two applicants-which has been dismissed by the learned Second Additional Sessions Judge, Sukkur by his order, dated 15-10-1984. In this order the learned Judge has opined:- "'It was found that the deceased and the complainant received five injuries each on the vital part of the body which indicated that more than one fire was made on each victim and participation of more than one person was inferred. Similarly there was previous enmity between the parties which fact indicated motive of the accused to commit the above crime. Both the applicants/accused were held responsible for constructive liability on the commission of alleged crime."
7. ' The two accused have now moved the bail application in this Court and their learned counsel Mr. Shamsuddin Shah has argued that no doubt the injuries which has resulted in the death of Mehrab are the result of gunshots but the crucial point which remains to be determined is which of the three accused has caused injuries Nos.2 and 3 on the body of the deceased which according to the, medical opinion are the main cause of death of the deceased. He further relies on the statement of the doctor in his cross-examination wherein the doctor has stated. That death of Mehrab can be the result of one gunshot. Which of the three accused is responsible for this One gunshot is a case for further inquiry. The cumulative effect of the evidence so far on the record particularly the portions underlined by me in the proceeding paragraphs indicates that it is quite possible that the third accused Rafiq who is not before us may have caused these fatal injuries.
8. Further the possibility of one of the present applicants to the exclusion of the others having caused fatal injuries Nos.2 and 3 cannot also be ruled out. Once it is conceded that the identity of the main culprits who has caused injuries Nos.2 and 3 remians doubtful or debatable thd case falls within the purview of the decision of the Supreme Court reported in 1980 SCMR 784. The relevant portion may be quoted below:- ' It was next contended that from the available material it could not be said, as to who caused the fatal injury which left room for consideration, as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr.P.C. The learned Additional Advocate-General appeared to oppose the bail but after examining the material we were of the view that it was case of further inquiry. Accordingly we converted the petition into an appeal and allowed bail to the petitioners.
9. In this view of the matter the arguments of the learned counsel for the two applicants have force and the two accused are entitled to take advantage of the views expressed by the Supreme Court.
10. They should be released on bail on their furnishing surety in the sum of Rs,30,000 each and P.R.
11. Bond in the like amount to the satisfaction of the Sessions Judge, Sukkur. It is regretted that no progress is shown in this case and during the two years only one witness Abdul Rashid has been examined in the case. The learned trial Judge should try to expedite this matter and dispose of this case as early as possible.