1. ' Both the applicants Molvi Abdul Aziz and Abdul Ghafoor are involved n Crime No, 110 of 1984 of Police Station Pano Akil, registered on 5-7-1984. Zeport of commission of crime was made by Baghali son of Gulbahar Almani. -le stated that he and his brother-in-law Gulab were Harts on a piece of land originally belonging to Raja Ram Hindu, who had sold it to Muhammad Dawood, father of the accused. He alleged that they raised plea of pre-emption and their claim annoyed Muhammad Dawood and there arose dispute between them. He further alleged that he was standing on the land, alongwith Gulab, Momin, Dilmurad son of Gulbahar and Habibullah son of Allah Rakhio on that day viz. 57-1984, when Muhammad Dawood, Saindino, Abdul Aziz, Abdul Ghafoor, Abdul Majid and Ghulam, all armed with guns, Abdul Hamid Imamdin, Wazeer and Asghar all armed with Lathis;o Noral armed with hatchet, and 8-10 other persons not known to them went there at about 7-00 a.m. And made armed attack on them. Describing the incident further, he alleged that Muhammad Dawood shot Momin from his gun, Abdul Aziz and Ghulam shot Habib from their respective guns, Abdul Ghafoor and Saindino shot him (i,e, complainant) from their respective guns, and Abdul Hamid gave Lathi blow to Dilmurad. The incident was, according to him, witnessed by Nazar and Sher and others who went there on hearing their cries.
2. ' The crime was registered in respect of commission of offences punishable under sections 147, 148, 307/149 and 504/114, P.P.C. One of the victims, namely Momin, lost his life in Hyderabad on 12-8-1984 and the nature of the offence stood changed to that under section 302, etc. P.P.C. During the course of investigation, all the persons named in the F.I.R. Except the present applicants, Molvi Abdul Aziz and Abdul Ghafoor were apprehended. Jamaluddin, Imamdin, Ali Asghar, Abdul Hamid, Nooral and Wazeer, from amongst them, were granted bail by the learned Sessions Judge, Sukkur by his order, dated 30-101984. The remaining four, namely, Muhammad Dawood, Saindino, Abdul Majid and Ghulam Muhammad were granted bail by the same Sessions Judge by his order, dated 24-1-1985.
3. The present applicants are alleged to have absconded. They were apprehended on 13-8-1985.
4. Their bail application in the Sessions Court, Sukkur was dismissed by the learned 4th Additional Sessions Judge by his order, dated 22-8-1985.
5. ' The learned counsel for the applicants has urged that the case against them is identical to that against the co-accused, who have been released on bail by the learned Sessions Judge.
6. According to him, the applicants' case for grant of bail stands on better footing than that of their father Muhammad Dawood, who is alleged to have shot deceased Momin. He has further urged that the learned Additional Sessions Judge has refused bail to the applicants mainly on the ground that they had absconded after commission of the crime. He has contended that the learned Additional Sessions Judge has not given due consideration to the plea of alibi advanced by the applicants and the explanation furnished by them against the allegations of their abscondence. He has made reference to certain certificates and documents filed alongwith the application. He has also made reference to the order of the learned Sessions Judge, dated 24-1-1985, wherein it has been mentioned that there was mention in the investigation diaries by the Investigating Officer that both the present applicants were victims of false implications and they were not present at the place of Wardat at the time of incident. He has placed reliance on case reported in 1984 SCMR 521, in support of his contention that the findings of the Investigating Officer during the course of investigation may be considered while deciding the question of grant of bail. He has cited two cases, one Sangi Marmar and another v. The State 1975 SCMR 510 and another Muhammad Akram Khan v. The State and another 1978 SCMR 242 in support of his submission that the plea of alibi advanced by accused may be considered even at the bail stage. He has cited two other cases, one Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and another Ibrahim v. Hayat Gul 1985 SCMR 382 to canvass the plea that the abscondence, if satisfactorily explained, does not stand in the way of grant of bail.
7. ' The learned A.A.-G. Has conceded to the grant of bail on the ground that co-accused, particularly co-accused Muhammad Dawood, who has been attributed the main part in the incident of being responsible for causing death of Momin, has been granted bail by the learned Sessions Judge, Sukkur and also on the grounds that the applicants had produced before the police evidence in support of the plea of alibi and their alleged abscondence finds prima facie explanation from the circumstances that they were students and they could have been apprehended if the police had taken appropriate action therefor.
8. ' The incident is alleged to have taken place during broad daylight and its report was lodged on the same day within about four hours and names of 12 assailants, including the two applicants were disclosed and the part played by each of them was mentioned. The facts alleged indicate that it was an incident of premeditated armed attack on the victim party due to dispute over land. In that situation, each of the participants could be held responsible of vicarious liability. The view of the learned Sessions Judge in his order, dated 241-1985 on this aspect of the case does not seem impressive of course, another aspect of the case as to who had participated in the crime does need serious consideration. Dealing with the case as regards the present applicants, it has been represented that they were somewhere else on the day of incident and such evidence was produced before the Investigating Officer, who held the view, as reflected in the order of the learned Sessions Judge, dated 24-1-1985, that the opinion of the Investigating Officer in favour of the accused was considered by the Supreme Court as a relevant circumstance in the case of Ameer Ali and others v. The State reported in 1984 SCMR 152. Although the plea of alibi advanced by the applicants would need evaluation at the trial of the case yet the opinion of the Investigating Officer formed on the basis of that evidence is a favourable circumstance for the consideration of bail in the light of the view adopted by the Supreme Court in the aforesaid case.
9. The learned Additional Sessions Judge, rejected the applicants' bail application mainly on the ground that they had absconded. The applicants have filed certain documents to indicate that they were pursuing their studies in certain institution in the country and they had not absconded. It is probable that the police was not keen to arrest them as they had formed the opinion that they had not participated in the incident although their names were placed in the column of absconding accused. The question of abscondence, as an incriminating circumstance, therefore, needs consideration at the trial.
10. ' The learned AA.-G. Has not opposed the application.
11. ' For the reasons recorded above, the applicants are granted bail in he sum of Rs,25,000 (Rupees twenty-five thousand) with one surety each and P.R. In the like sum to the satisfaction of the trial Court. The grant of bail to the applicants is without prejudice to the merits of the case to be considered at the trial.