' The petitioner Dost Ali alongwith three other persons has been accused of the commission of offences under sections 302, 337-A(i), Qisas and Diyat Ordinance read with section 114/34, P.P.C.
And 134(d), A.O. In respect of an F.I.R. No,71/93 lodged by one Saifal son of Khuda Bux on 31-8-1993 at Police Station Kashmore District Jacobabad.
2. The prosecution story, as narrated by the complainant Saifal in the F.I.R. Is that he alongwith his two sons namely Noor Hassan and Ghous Bux (deceased) had left Kashmore for their village on 31- 8-1993 via Sukkur Bund when at about 13-00 hours they were intercepted by (i) Atta Muhammad,
(ii) Dost All (the present applicant), (iii) Wali Muhammad, and (iv) Noor Muhammad. Atta Muhammad and Dost Ali were armed with guns while Wali Muhammad and Noor Muhammad were armed with Lathis. The role assigned to each accused in the F.I.R. Is as under:--
(i) Accused Wali Muhammad instigated co-accused not to spare Ghous Bux.
(ii) Noor Muhammad pushed complainant party who fell down from motor-cycle.
(iii) Accused Wali Muhammad and Noor Muhammad throttled Noor Hassan and also gave him fists blows on his chest.
(iv) Accused Atta Muhammad and Dost Ali chased deceased Ghous Bux who fell down near the watercourse when the accused Atta Muhammad fired from his gun at the deceased. Then they ran away.
3. Thus, the only role of applicant Dost Ali, as mentioned in the F.I.R., was that he chased the deceased and nothing else. All the four accused moved their bail application before the trial Court of 1st Additional Sessions Judge, Kandhkot but the same was rejected vide order, dated 28th day of November, 1993. The last para. Of the said order is very important, hence the same is reproduced as under:-- "From the perusal of F.I.R. It is clear that there is specific allegation against the accused/applicant Atta Muhammad that he fired from the gun at deceased Ghous Bux which hit him, the above version of the complainant is fully supported by the post-mortem report, according to which there is a gunshot injury on the right nipple margin of the deceased. According to F.I.R.
Accused/applicants Wali Muhammad and Noor Muhammad throttled P.W. Noor Muhammad and according to medical certificate of P.W. Noor Hassan he has two contusion injuries on his neck and he has also three other injuries on his person. Under the above circumstances I am of the opinion that occular testimony is fully corroborated by the medical evidence, and at present there is sufficient evidence on record to connect the accused with crime, therefore, they are not entitled for concession of bail I, therefore, reject the bail application."
4. Bail application before this Court has been moved only for the accused Dost Ali. From the F.I.R. It is evident that the deceased Ghous Bux met his death because of the firing done by co-accused Atta Muhammad. The present applicant had no need to chase the deceased if he had a gun because he could easily fire upon the deceased instead of chasing him. No overt act, so far as the death of Ghous Bux is concerned, has been ascribed to the applicant Dost Ali. Inspection of section 34, P.P.C. In the F.I.R. Deals with the vicarious liabilities of accused person, but in respect of present applicant, the same can, too, be decided after recording evidence as there is nothing on the record, so far, to be used against him.
5. On the face of facts, as they are at present, I feel that the applicant Dost Ali is entitled to an order of grant of bail. He shall be released on bail on furnishing one surety in the sum of Rs,50,000 (Rupees fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
' Before parting with the above order, I would be failing in my duties, if I fail to place on record my anxiety for the manners in which the learned Additional Sessions Judge has disposed of the bail application without application of his mind properly. In spite of microscopic study of the order, I failed to find out a single sentence about the role of applicant Dost All on the basis of which such order could be justified. The learned Additional Sessions Judge is required to send copies of the orders passed on bail applications during the months of January, February and March, 1994 through his Sessions Judges within one month of the receipt of this order for the perusal of this Court.