' This bail application is moved on behalf of the applicant, who alongwith two other co-accused is facing trial under section 302/34, P.P.C. Before the Sessions Court, Larkana.
2. The prosecution case in brief is that on 1-7-1988 at about 5-00 p.m. Complainant Khalid Ahmed was going along with his cousin deceased Sikandar Hayat on motorcycle to their land. The motorcycle was being driven by deceased Sikandar Hayat. On the way the present applicant along with the co-accused emerged out of the weeds. The present applicant is alleged to be armed with revolver, while co-accused Akbar was armed with a gun and co-accused Ali Bux was armed with a rifle. The co-accused are alleged to have fired at the deceased while the present applicant is alleged to have fired in the air. The incident was also witnessed by prosecution witnesses Abdul Rahim and Badal Brohi. The accused are alleged to have murdered the deceased because of dispute over land. Such F.I.R. Was registered by the complainant on the same day at 6-00 p.m. At Shandadkot Police Station which is at a distance of 10 miles from the scene of offence.
3. The main contention raised by Mr. Muhammad Hayat Junejo learned counsel appearing for the applicant is that the applicant is alleged to have made ineffective firing in the air and is not alleged to have fired at or caused any injury to the deceased. Secondly it is submitted that the applicant pleads alibi, as on the date of incident he was in Thatta and in support he has filed affidavits of three persons namely, Muhammad Parial Surhio, Assistant Engineer, Thatta Sub-Division, Ali Akbar Shahani, an Advocate and Hafiz Ahmed Ali Abbasi a Zamindar of Larkana. The last two are alleged to have accompanied the applicant from Larkana to Thatta, where they stayed with the said Muhammad Parial.
4. With regard to his first submission the learned counsel for the applicant has relied upon the cases reported in 1987 P Cr. L J 982, 1985 P Cr. L J 2007 where bail was granted by a learned Single Judge of this Court where the accused was accused of ineffective firing. Reliance is also placed on 1984 SCMR 206 wherein their Lordships granted bail to the accused where no blow was attributed to the accused causing death of deceased and the co-accused had been admitted to bail by the High Court.
5.
Mr. Azizullah K. Shaikh learned counsel appearing for complainan Khalid Ahmed has urged that there is no rule of law laid down by the Supreme Court that in every case of ineffective firing bail should be granted as a matter of right to such accused person, because the accused can be vicariously liable for the acts of co-accused under section 34, P.P.C. In support he has relied upon PLD 1978 SC 236, 1981 SCMR 1092 and PLD 1967 SC 340. In all these three cases bail was refused to the accused, who were not alleged to have caused any injury to the deceased.
6. It may be relevant to refer to the observations of their Lordships in the case of Chiragh Din and others v. The State PLD 1967 SC 340. The question for consideration before their Lordships was 'whether a person, who is alleged to have given Lalkara, can be considered vicariously liable and bail can be refused to him on that ground'? Their Lordships observed that 'that question must be decided by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the Lalkara, and the part he played in the background of the affair'.
7. It is submitted that the enmity over the land was between the deceased and co-accused Akbar and Ali Bux, whereas the present applicant is said to be related to them and was a Canal Assistant.
8. It is submitted by Mr. Azizullah K. Shaikh that the applicant being a Government servant could not purchase the land in his own name, but may have purchased in the name of co-accused.
However, he concedes that presently there is no such evidence on the record.
9. The next piece of evidence against the applicant is that five .32 bore revolver empties were secured from the scene of offence and a licensed revolver was also secured from the possession of the applicant and have been sent to the Ballistic Expert, but admittedly no report of Ballistic Expert has been received so far.
10. In support of the second contention of alibi Mr. Muhammad Hayat Junejo has relied upon the three affidavits of the aforementioned persons, which show that the present applicant was at Thatta on the day of incident. It is submitted by Mr. Azizullah K. Shaikh that in the first bail application before arrest moved by the applicant on 5-7-1988, no such plea was raised by the applicant, but it was raised in the subsequent application moved after his arrest. It appears that the affidavits were sworn in on 12-7-1988 viz. After the first application.
11. Mr. Muhammad Hayat Junejo learned counsel for the applicant has relied upon the case of Khalid Javed Gillani v. The State PLD 1978 SC 256. In that case their Lordships have observed as under:- "However, as a Court cannot, in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessm ent of 'the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case', therefore, whilst the prosecution may be able to prove that Muhammad Azeem was a man of unimpeachable character, for the purpose of the bail application, the hostile relationship between the parties is a circumstance not irrelevant to the Court's assessm ent of the material produced before it. Similarly, although the petitioner's plea of alibi is supported by the affidavit of a disinterested person, once again we must emphasize that it would be open to the prosecution to prove that the evidence of Dr. M.A. Aziz is not fit to be relied upon. But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute who does not have any ostensible connection with the petitioner, supports the petitioner's case. How then did the High Court refuse bail?"
' Their Lordships granted bail on the plea of alibi supported by the affidavit. This case has been relied upon in the case of Abdul Razzaq Mania v. The State 1988 SCM R 653.
12. Mr. Abdul Ghafoor Mangi, learned AA.-G. Appearing for the State also opposes the bail application, but he points out that there are two wounds of entry and two wounds of exit upon the deceased which could be caused by bullet and not by pallet. From the F.I.R. It appears that only one shot was fired from the rifle and one from the gun and ineffective firing was made from the revolver. Thus the second bullet injury on the person of the deceased still remains to be explained by the prosecution.
13. Mr. Muhammad Hayat Junejo further submits that the presence of the complainant appears to be doubtful as he was riding on the same motorcycle with the deceased when deceased was fired at with the rifle and gun and in such circumstances complainant would have likely received injury and could not have escaped unhurt. As observed by their Lordships in the case of Chiragh Din this question of vicarious liability is to be decided on appreciation of all the facts of the case.
14. In the instant case the direct enmity over the land is between the co-accused and the deceased and the co-accused are alleged to have fired at the deceased. There are three affidavits filed in support of the plea of alibi of the applicant. As already pointed one of the deponents is Assistant Engineer and the other is an Advocate. Thirdly as pointed above, one of the bullets injury on the person of the deceased remains to be explained by the prosecution. Further more in absence of Ballistic Expert's report, presently it cannot be said that the empties allegedly secured from the scene of offence were fired from the revolver produced by the applicant.
15. Keeping in view all these facts and submissions in my opinion, it is a case of further enquiry, as there are reasonable grounds to believe that the applicant has not committed the alleged offence.
I, therefore, order the applicant to he released on bail on furnishing surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.