1. ' This bail application is made on behalf of Allandino son of Sohno, who alongwith one Habibullah is charged with an offence under section 302 read with 34, P. P. C. For causing the murder of one Amir Bux. The First information Report of this offence was lodged on 24.11-1975 at Tangwani police station in District Jacobabad. The challan was submitted in the Court of Civil Judge and F. C. M., Kandh Kot on 10-12-1975, but the case is now sent to the Additional Sessions Judge, Kandh Kot, for trial under the amended law.
2. ' The First Report was lodged by Abdul Aziz who is the brother of the deceased Amir Bux. According to him deceased Amir Bux had shifted to village Saindad Malik in Taluka Qureshi, a few months before and had taken his wife Mst. Sasi also with himself. A day before the incident Complainant Abdul Aziz and his relation Karim Bux had gone to Amir Bux to borrow a bullock for the purpose of ploughing. Amir Bux having gone to the land for harvesting they stayed in the house till evening and were thereafter asked by Amir Bux to stay for the night and to take away the bullock in the morning. After taking meals Mst. Sasi slept with her husband Amir Bux while the complainant Abdul Aziz and his companion Karim Bux slept on separate cots in a room. They got up on the sound of gun shots at about midnight. Karim Bux gave a Hakal and also saw two persons running out of the room. Both followed them and in the moonlight saw and identified' Habibullah, the brother-in-law of Amir Bux with a gun in his hand. They also saw the applicant who had a hatchet in his hand.
3. Habibullah threatened them not to come near or else they would be killed. On the commotion Rahim Bux and some other persons of the village also came and saw Habibullah with the gun and the applicant armed with a hatchet while running away. They all came back and saw that Amir Bux had sustained gun shot injury on his left side below his chest and was dead. The motive of the crime was described in the F. I. R. That Habibullah wanted to get his sister divorced and then to get her married in exchange. The learned counsel for the applicant has pressed in service several grounds, some being that no hatchet injury was either alleged to be given to the deceased or subsequently found on the person of the deceased, that no overt act was attributed to the applicant, who was alleged to be armed with hatchet, and that the evidence of identification on moonlight was not sufficient, at least for the purpose of consideration of bail application of the applicant.
4. ' The Additional Sessions Judge, Kandh Kot rejected the application for bail, which was filed on behalf of the applicant on the simple ground that he was noticed alongwith Habibullah the co- accused by witness Abdul Aziz and Karim Bux as coming out of the room. The name of the applicant appeared as an accused in the First Information Report and further that the case had not yet been proceeded with. He, therefore, did not think it to be a proper stage for considering the application for bail.
5. ' Learned Counsel for the applicant has cited a number of authorities to show that where no overt act was attributed to an accused it was considered to be a good ground for grant of bail. But mainly he referred to the two judgments of this Court, one being Abdul Rehman and another v. The State. Criminal Bail Application No, 264 of 1975, decided by my learned brother Muhammad Haleem, J.. And the other of Wahiddino and others v. The State Bail Application No, 496/75, which was decided by Mr. Justice Dorab Patel, J. (as he then was) and in which reliance was placed on the application first referred to. In both applications bail was refused to the accused who had used fire arm but was granted to those to whom no overt act was attributed. In para. No, 2 of the order Mr. Justice Dorab Patel, J. As he then was observed :- "I now turn to the case of the other 4 applicants I have now had the benefit of the assistance of the learned Additional Advocate-General, and I would base the order, I am passing, on the sole ground that no overt act or role has been attributed to applicants 1 and 5 in the first information report. At this stage, whatever be the position after evidence is recorded, I would be inclined to give bail on this ground, and I am fortified in my view by a similar order passed by my brother Muhammad Haleem, S. In Criminal Bail No, 264 of 1975. On this ground, the learned Additional Advocate-General, also does not oppose bail though he states that the prosecution would be entitled to apply for cancellation of bail should the circumstances so warrant. That, of course, is so, and I allow bail to these two applicants."
6. ' On the same ground his Lordship was pleased to grant bail in the same order to applicants 3 and 4 also. Applicant No, 4 in that case was alleged to have inflicted lathi injuries, but his Lordship observed: "Therefore, as there is no evidence as yet of a design or of a common intention under section 34, P.
7. P. C. I would allow him bail in the same terms, but it would be open to the prosecution to apply for cancellation of bail if the evidence warrants."
8. ' The learned Additional Advocate-General Mr. Abdul Hafiz Lakho who had appeared in the two bail applications referred to above took time to examine the merits of those two cases and to make a distinction on facts. He ultimately submitted that in the first, bail application i. e. 264 of 1975 there was a motive due to enmity while in the Application No, 496 of 1975, the motive was not to kill but the dispute was on the ploughing of the land. In the present case according to him the applicant along with Habibullah had come definitely to kill deceased Amir Bux. He, therefore, was not in a position to concede in this case as he had done in the two cited cases. The two cases referred to above were cases in which section 149, P. P. C. Was attracted, the present case is not of that kind.
9. So far the applicant is concerned he admittedly did not cause any hatchet injury with which he was armed. The application of section 34, P. P. C. By which the responsibility of the act of Habibullah could be stretched to him would be only if he shared the common A intention of murdering deceased Amir Bux. This aspect of the case is yet to be established and at the present moment it could at the most be said to be a matter of inference. In all cases of inferential evidence the same has got to be of a nature which is incompatible with the innocence of the accused, and it is difficult at this stage to attribute such an intention to the applicant. It may be proved by evidence which is yet to be recorded. In these circumstances. I would rely on the two cases referred to above, and in which the learned Additional Advocate-General had also conceded, and on the basis of the same grant this application and allow bail to the applicant in the sum of Rs. 10,000 and P. R. In the like amount to the satisfaction of the Court of the. Additional Sessions Judge, Kandh Kot. Prosecution, however, is at liberty to move for cancellation of the bail if and when evidence comes on the record which may give sufficient grounds for such a course to be taken.