1. ' The applicant is facing trial under section 302/34, P.P.C. Before the learned 1st Additional Sessions Judge, Tharparkar, at Mirpurkhas.
2. ' The brief facts of the case are that on 28-11-1987, one Nishan Ali lodged a report at P.S. Kot Ghulam Ahmed inter alia alleging therein that Mushtaq Ahmed son of Nawabuddin Kherho Jat was his real maternal-uncle and was contesting local council election from U.C. Khudadad. Muhammad Rafiq son of Muhammad Jat, and Ghulam Rasool Arain were also candidates. Abdullah son of Muhammad Sharif is real brother of candidate Muhammad Rafiq who approached Mushtaq Ahmed for 10/15 times to withdraw from his candidature in favor of his brother Muhammad Rafiq but Mushtaq refused on which Abdullah Jat was annoyed. Last night Mushtaq Ahmed had come to their Otaq for work where Muhammad Siddiq son of Muhammad Hussain, Khursheed son of Muhammad Amin and Farman Ali son of Mir Ahmed also came. While they were talking with each other during the night, Haji Muhammad Shafi and others came in a vehicle at 1-30 a.m. And asked Mushtaq Ahmed to accompany them for the work of Abdul Ghafoor. Musthaq Ahmed refused to accompany them saying that he was busy with his own election work, on which Muhammad Shafi went away. At about 3-00 a.m. Abdullah son of Sharif Jat with two other unidentified persons came at the door of Otaq duly armed with double barrel gun. His companions told him that he was Mushtaq and fired at him. On which Abdullah fired two shots with double barrel gun at Mushtaq Ahmed on his chest with intent to kill him. Mushtaq Ahmed received injuries on his chest and arm and fell down on the ground. They followed Abdullah and others but they ran away. On their cries and gunshot reports father of the complainant and other villagers came there who also saw fire- arm injury on the person of Mushtaq Ahmed. They narrated the above facts to the witnesses. The complainant leaving the witnesses at the dead body went to the police station and lodged his report.
3. ' After eleven days the investigation was handed over to C.I.A. And the present accused along with Saifullah and Fazal Ilahi were arrested. On the following day they were produced before 1st Class Magistrate where their judicial confessions were recorded.
4. ' After necessary investigation the applicant and co-accused were challaned.They moved an application for bail before the learned trial Judge but the same was rejected.
5. ' It has been contended by Mr. Javed Chaudhary, learned counsel appearing for the applicant that judicial confessions are in total conflict with the case set up by the prosecution in the F.I.R. The complainant was sister's son of deceased Mushtaq Ahmed and, therefore, it cannot be expected that he will leave the real culprits and involve an innocent person. The parties are neighbourers and are very well-known to each other. The complainant has specifically named Abdullah son of Muhammad Sharif, who was said to have fired at the deceased, and, therefore, it was lastly contended by Mr. Javed Chaudhary that looking to the circumstances of the case, the case of the applicant requires further inquiry.
6. ' Mr. Zaheer Qureshi, learned counsel for the State has conceded to the grant of bail to the applicant in view of the above circumstances, but has further contended that it should be left open to the learned trial Judge to cancel the bail of the applicant if any tangible evidence is brought on record against him during the trial.
7. I have considered the contentions of the learned counsel. Admittedly, the F.I.R. Shows that it was one Abdullah who had fired at the deceased and killed him. The motive mentioned in the F.I.R. Is shown to be an election dispute. As far as judicial confessions are concerned, they have been recorded after 12 days of incident and they are in total conflict with the prosecution case as set up in the F.I.R. The judicial confessions show that each one of the accused had separate motive.
8. Moreover, it has been contended by Mr. Javed Chaudhary that law requires that two warnings are to be given to the accused before confession is recorded but in the present case there was non- compliance of mandatory provisions of law. In this connection the learned counsel has relied upon 1984 P Cr. L J 611. Be that as it may, looking to the facts mentioned above, it is clearly a case of further inquiry. Especially when the parties were known to each other and complainant being sister's son of the deceased, he would not have left the actual culprit and implicated an innocent made at the time of lodging report. Even the confessions do not show the applicant had fired at the deceased. In view of the above discussion, I am of the considered view that the case of the applicant requires further inquiry and, therefore, I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs,1,00,000 (Rs, one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
9. ' However, if any tangible evidence is brought on record against the applicant during the trial, the trial Judge will be at liberty to cancel his bail.
10. ' The observations made by me in the above order are of tentative nature and the learned trial Judge will hear and decide the above case uninfluenced by whatever has been observed in the above order.