1. ' The applicant is facing trial under section 302/379, P.P.C. And section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 alongwith Hamid and Ahmed Ali.
2. ' The brief facts giving rise to the present application are that on the night between 28th and 29th September, 1987 a bullock was stolen from the house of one Gul Hassan. The complainant and others found footprints of three persons at the wardat. They tracked the prints with assistance of one Faiz Muhammad foot tracker, and at about 5-00 a.m. They reached the thieves near Kandi Canal. P.W. Bashir Ahmed flashed his torch and on the torch light they saw Hamid son of Atta Muhammad Rind armed with a gun, Manik s/o Wali Muhammad who was with the bullock and was armed with hatchet, and Ahmed Ali armed with hatchet. Complainant Bashir, Muhammad Khan and Gul Hassan challenged the accused and asked them to stop on which accused Hamid fired straight at Bashir and he was injured and died. On gun shot report, Faiz Muhammad and other villagers also reached there but the thieves ran away. The tracking party continued following the foot prints of the thieves, alongwith tracker Faiz Muhammad. At about noon time they reached the thieves near village Maishahul Chandio, when two of the thieves ran away, while applicant Qadir Bux was caught with bullock and hatchet. The complainant party took the applicant to Nekmard Ghulam Dastagir and informed of the incident who directed them to go and lodge report, which was accordingly lodged.
3. ' After the case was challaned a bail application was moved by the applicant before the learned trial Judge but the same was rejected. An application was filed before this Court being Cr.Bail Application No,47/88 but the same was withdrawn on 24-1-1988. However, a direction was given to the learned trial Judge to examine the complainant and some material witnesses within three months, and thereafter the applicant could repeat his bail application if so advised.
4. ' Since the case did not proceed, the applicant moved an application for bail before the learned trial Judge but the same was dismissed.
5. ' I have heard Mr. Nooruddin Sarki, learned counsel appearing for the applicant Mr. Zaheer Qureshi, learned counsel appearing for the State and have gone through the documents produced alongwith bail application.
6. ' It was contended by Mr. Nooruddin Sarki, learned counsel appearing for the applicant, that the common intention, if any, on the part of applicant and the co-accused was to commit theft, and as soon as the lurking house-trespass by night was committed and the bullock was taken out of the house the same was complete. That the firing by co-accused Hamid at deceased Bashir Ahmed was his individual act, and the present applicant could not be made responsible for the offence of murder. It was further contended that co-accused Manik was released on bail by the learned Sessions Judge vide order, dated 28-4-1988 and the case of the present applicant was identical to that of Manik and therefore he was entitled to bail.
7. ' Mr. Zaheer Qureshi, learned counsel appearing for the State, has conceded to the grant of bail in view of the above circumstances.
8. ' I have considered the contentions of the learned counsel. The F.I.R. Shows that offence of murder was committed at sufficiently long distance from the place from where the theft was committed.
9. The applicant and co-accused had already committed theft and had retreated. That the co- accused Hamid had fired at decease `Bashir Ahmed, while he and co-accused were being chased.
10. From the circumstances mentioned in the F.I.R. It cannot be said at this stage that co-accused had a common intention to kill Bashir Ahmed inasmuch as the common intention could be commit theft and the same was already achieved. There is no allegation against the applicant and co- accused Manik that they were armed with any fire-arm or they fired at deceased. Co-accused Manik has been released on bail by the learned trial Judge vide order dated 28-4-1988.
11. ' As far as offence under section 379, P.P.C. And section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 are concerned, they are not punishable with even seven years. In the case of Rahmat and 2 others v. The State (1969 P Cr. L J 1067) it was observed by their Lordships of the Supreme Court that:-- "In the absence of proof that any two accused persons acted jointly in the course of this transaction the liability of each accused person must be settled on the basis of his individual acts.
12. In the present case, the prosecution evidence regarding the part played by each of the present appellants is perfectly clear. The death of Sadiq was caused by a spear blow struck by Rahmat, and he alone is guilty of the offence of culpable homicide punishable under section 304, P.P.C."
13. ' In the case of Hazoor Bakhsh v. The State (1972 P Cr. L J 698) it was observed that:-- "Cr.P.C. Section 498 bail. Since deceased lost his life at the hands of Ashraf accused and he was killed at a time when the offence of lurking house-trespass was ,complete, I feel that the petitioner, in the aforesaid circumstances, would be entitled to bail, specially when there was no evidence to indicate that the petitioner was aware of co-accused that he will commit murder."
14. ' In the case of Muhammad Fazal alias Bodi v. The State (1979 SCM R 9) it was observed by their Lordships of the Supreme Court that:- "The case of the applicant being identical to that of co-accused since released on bail, the principle of consistency required that the applicant should also be released on bail, and the applicant was released on bail."
15. ' In view of the above discussion and legal position, I am of the considered view that the case of the applicant requires further inquiry. I, therefore, direct that the applicant shall be released on bail on furnishing surety in the sum of Rs,1,00,000 (Rupee one lac only) and PR Bond in the like amount to the satisfaction of the trial Court.