1. ' This bail application has been filed on behalf of applicant Muhammad Umar son of Muhammad Hashim Essani who has been challaned by Police Station Sultankot in Crime No,27 of 1993 for offence under section 302, Q&D Ordinance read with section 114/34, P.P.C. And 13-D, Arms Act. A bail application was moved by the present applicant before the trial Court but the same was rejected by the learned Sessions Judge, Shikarpur vide his order dated 15th August, 1993.
2. ' The brief facts as alleged in the F.I.R. By the prosecution are that on the day of incident the complainant alongwith Muhammad Bux, Sharfuddin and Saleh Sundrani had gone from their village to Shikarpur and when they reached near uncultivated land of one Niaz Khan Bhayo at about 9-00 a.m. They saw five persons, namely, Hadi Bux armed with gun, Zakir armed with gun, Umar armed with gun, Sobo armed with gun and Gambo who was empty handed who emerged from the jungle and challenged Muhammad Bux that as their persons were murdered by them hence they will not be spared. It is further alleged in the F.I.R. That accused Gambo instigated the other accused to kill Muhammad Bux whereupon Hadi Bux fired from his gun upon Muhammad Bux which hit him on his temporal region and he fell down raising cries. It is further alleged that accused Zakir fired at him with the gun which hit him on his nose, accused Sobo is alleged to have fired from his gun upon Muhammad Bux which hit him on his chin. It is further alleged that accused Umar fired in the air. According to the F.I.R. The prosecution witnesses requested them in the name of Holy Qur'an not to attack them and thereafter the accused went towards eastern side of the jungle. After departure of the accused the complainant party went and saw that Muhammad Bux was lying dead in a pool of blood and blood was oozing out of his injuries. The complainant left the prosecution witnesses to look after the dead body at the Wardat and he proceeded towards his village to inform his co-villagers and after informing them he left for the police station and lodged the report at Police Station Sultankot. The police after usual investigation have challaned the accused in the Court.
3. ' This bail application has been filed on behalf of accused Muhammad Umar and the main contentions raised by the learned counsel for the applicant are that no injury has been caused by the present applicant to the deceased and only part assigned to him is that he fired in the air. He has further contended that the applicant is Nekmard of his village and as such he has been involved by the complainant party falsely in this case on account of previous enmity. In view of the circumstances he has urged that the case of the present applicant calls for further inquiry and as such he is entitled to the grant of bail. Mr. Gul Bahar Korai learned counsel appearing on behalf of the State has strongly opposed the grant of bail to the applicant at this stage as according to him the accused had formed unlawful assembly and in prosecution of common object of that assembly the complainant party was attached. According to the learned counsel of the State out of the five accused, three are alleged to have fired at the deceased directly and the fourth, namely, the present applicant also fired in the air with the purpose to create panic and harassment so that nobody can intervene in the matter. He has further stated that by application of section 149, P.P.C.
4. The present applicant is also not entitled to the concession of being released on bail. According to section 149, P.P.C. If an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence is a member of that assembly is guilty of that offence. In this case according to the learned counsel for the State the applicant was not only member of the unlawful assembly but he even participated in the commission of crime by firing in the air. As such by virtue of section 149, P.P.C.
5. Which creates vicarious liability, the present applicant is also liable for commission of the main offence. According to the learned counsel for the State the blood was found at the Wardat and five empty cartridges of .12 bore have been recovered from the Wardat to establish the place of Wardat.
6. ' I have heard the arguments of the learned counsel for the applicant Mr. Ali Goher Khan Baloch and Mr. Gul Bahar Korai, Advocate for AA-G. For the State. I have also gone through all the material which has been placed on record. I have also gone through the order passed by the learned Sessions Judge. In view of the facts of the present case I feel that no case has been made out for releasing the applicant on bail. As such the bail application is dismissed.