1. ' The applicant in this case has been put up on trial for offence under sections 302, 382, 458, 324, 323, 34, P.P.C. And 13(d) Arms Ordinance. The F.I.R. Was registered under sections 460, 459, 34, P.P.C.
2. And 13(d) Arms Ordinance. The prosecution case as narrated in the F.I.R. Is that on 21st of July, 1984 at about 1-30 a.m. In the night the complainant was sleeping in his house with other members of his family. At about 1-30 he woke up on the barking of the dogs and saw two persons who had broken into his house. One of them had gun in his hand and the other had a pistol in his hand. On being challenged the one armed with gun fired the gun and the shot hit the wife of the complainant on the left side of her face. This lady died there and then. The other fired his pistol which hit the complainant on his head. The F.I.R. Proceeds to narrate: "We followed the assailants.
3. All the four unidentified persons ran away' from north-western corner of the hedge". The important portion of the F.I.R. Then proceeds to narrate as follows:- "Then I sent Wali Muhammad and Allan to bring private tracker Sobho Zardari came who alongwith P.W. Muhammad Nawaz, Zamir and other villagers went after the prints then leaving P.W. Shahzado over dead body of Kalsoom I went to inform Nekmard Khair Muhammad Jhatial who directed me to lodge F.I.R. Now I have come to lodge the F.I.R. The unidentified four persons after trespassing hedge from the south-western side having been armed, entered my house with intention to commit theft and murdered my wife Kalsoom and injured me by firing with pistol and committed theft of tape-recorder and bag containing articles.
4. ' Details of stolen articles:-
(1) Tape-recorder National Company. Double sound worth Rs,600.
(2) One ragzine bag with yellow and red colour worth Rs,50.
(3) Two golden rings weighing 2 Tolas worth Rs,1,000.
(4) One pair green silken cloth with embroidery worth Rs,100. Total worth Rs,1,750."
5. ' It is significant to note that the present applicant Wali Muhammad was present on the scene alongwith the other witnesses and had enjoyed the confidence of the complainant to such a degree that he was entrusted with the duty of finding out a tracker to trace the robbers. Perhaps it was through his efforts that trackers Sobho Zardari came to the scene on the next day. This accused was apprehended by the police on the 14th of August, 1984 after 24 days of the incident.
6. ' Learned counsel for the applicant has contended before me that there is no mention of the name of this applicant in the F.I.R., that the Mashirnama for recovery of the stolen property from the applicant is undated and that the applicant has been arrested after 24 days. In the peculiar circumstances of this case none of these three contentions seem to be relevant for granting him bail. However, the one fact which goes in favour of the accused is that if everything is believed and every irregularity is condoned even then the maximum that can be said against him is that some items of the stolen property mentioned in the F.I.R. Were recovered from his house. But this cannot be a ground to implicate him in the crime of "lurking house trespass or house breaking by night punishable where death or grievous hurt caused by one of them". As a matter of fact his presence at the time of offence is admitted but not as a member of the band of robbers but as a well-wisher of the complainant who was entrusted with the duty to track down the foot-prints of the robbers with the assistance of tracker. Having once clothed him with this beneficial role of pursuing the decoits it is doubtful whether he can be assigned a role of being one of their gang on that night merely because some items of stolen property are said to have been recovered from his house after 22 days or so. His case would fall under section 411, P.P.C. And may be under section 13(d) of the Arms Act if the recovery of the gun is proved. On this appreciation of the facts of the case the accused would be entitled to bail. He should be released on his furnishing surety in the sum of Rs,20,000 and P.R. Bond in the like amount to the satisfaction of Sessions Judge, Larkana.