1. ' This order will dispose of bail application filed on behalf of one of the accused person by name Kouro son of Abdullah by caste Haslo who has been booked to face his trial alongwith 10 other co- accused under section 302, P.P.C. As amended and sections 365-A, 452, 457 and 324, P.P.C. Vide F.I.R. Bearing No,4 of 1995 registered at Police Station Nasirabad, Taluka Warah, District Larkana.
2. ' The case of the prosecution as stated by the complainant All Murad in his F.I.R. Is that on the night of the incident he alongwith his two sons went to sleep after taking meals in separate rooms alongwith their family members who went to sleep in their respective rooms. At about 1-00 a.m. On the night of the incident i,e, 28-11-1995, there was a knock on the external door and some noise was also coming on which he woke up and saw 11 persons on electric bulb light who had trespassed into his house after unlocking the door of the house. He identified some of the persons on electric light to be (1) Niaz alias Niazo armed with gun, (2) Ghulam Muhammad alias Ghulamo armed with rifle, (3) Sikander armed with gun, (4) Anwar armed with klashnikov, (5) Ali armed with gun, (6)
3. Ismail armed with gun, (7) Kouro (present applicant) armed with Lathi and rest of the persons were not identified by him, out of Whom 2 had klashnikovs and two had rifles. After seeing the culprits armed with deadly weapons in his house, the complainant took his gun and bag of cartridges and took position. All the accused were standing in the Varanda and were visible properly. Kouro (present applicant), led Ali Jat and unidentified persons armed with Klashnikov and rifle towards the room of his son Ali Asghar and saw that all the three culprits were dragging his son Ali Asghar who raised cries, the complainant gave Hakal to the accused not to kidnap his son, on which the other accused person started firing, complainant also fired from his position in his self-defence on which two accused one Niaz alias Niazo and one unidentified accused cried and fell down on the ground. In the meanwhile the gun of the complainant went out of order and did not work properly.
4. Thereafter the accused seeing their fellow culprits shot dead, fired directly on All Asghar which hit him and he also fell down on the ground. In the meantime Ghulam Qadir, brother of the complainant and Anwar nephew of the complainant came running from their house. The culprits ran away after firing in the air alongwith their weapons as well as weapons of their deceased companions. Police patrolling party headed by A.S.I. Rasheed Pathan arrived and gave letter for medical treatment and chased the culprits. Thereafter the complainant took the injured Ali Asghar to the hospital who succumbed to the injuries on the way.
5. ' Bail application was filed on behalf of the present applicant before the Court of Special Judge for Suppression of Terrorist Activities, Larkana which was rejected by him vide order, dated 22-5-1995.
6. ' We have heard the arguments of Mr. Abdul Khaliq Bhutto learned Advocate for the applicant and Mr. Khalid Iqbal Memon, learned Advocate appearing on behalf of the State and have perused the entire record of this case.
7. ' The learned Advocate for the applicant contended that during the investigation of this case, the Investigating Officer found the present applicant Kouro innocent as such placed him at column No,2 of the challan and further that none of the witnesses have implicated the accused Kouro in commission of the offence of this case in their statements recorded under sections 161 and 164, Cr.P.C. And further that no witness has implicated the applicant for causing injuries with Lathis to the complainant party. As such applicant/accused Kouro is entitled for concession of bail. In support of his contention, the learned Advocate has placed his reliance on the following reported cases:--
(1) 1993 SCM R 1993, (2) 1994 SCM R 2161, (3) 1994 PCr.LJ 361, (4) 1994 PCr.LJ 898, (5) 1994 PCr.LJ 1473,
(6) 1994 PCr.LJ 1756, (7) 1994 PCr.LJ 2338.
8. ' The learned Advocate appearing on behalf of the State has conceded and has argued that Investigating Officer of this case has found the accused innocent as such placed him at column No,2 of the challan and none of the witnesses have implicated present accused in commission of the offence of this case, therefore, applicant/accused Kouro is entitled for bail.
9. ' The facts of the present case are very much distinguishable than the facts of the cases cited by the learned Advocate for the applicant.
10. We are afraid, we cannot accept the contention of the learned Advocate for the parties on the ground that F.I.R. Of this case was lodged promptly in which the complainant whose son was killed in the incident has identified accused Kouro armed with Lathi present on the spot when the offence of this case was being committed and has led co-accused Niaz and unidentified co-accused to the room of Ali Asghar, dragged him from his room to kidnap him for ransom. The complainant party has made out his presence as such we don't see any ground for placing the accused Kouro in column No,2 of the challan. However, vicarious liability of the accused Kouro for the murder of All Asghar could not be ignored as his presence is made out by the complainant and,is also shown armed with Lathi. There appears to be common intention on the part of the applicant/accused Kouro for the offence committed in this case. It is well-settled law that when a criminal act is done by several persons, in furtherance of their common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. In this case precious life of one innocent person was lost, secondly, the complainant being aggrieved by the police investigation for showing accused Kouro in column No,2 moved an application, on which the trial Court issued warrants. The case is a fresh one, some of the accused are still absconding present applicant/accused has also absconded for more than a month, deceased Ali Asghar had four fire- arm injuries. All the accused have criminally trespassed into the house of complainant to commit dacoity to kidnap his son Ali Asghar for ransom and ultimately killed him. We, therefore, are not inclined to grant bail to the applicant/accused Kouro at this stage, which is accordingly rejected.