' The facts leading to the present application for bail are that applicant/accused Jan Muhammad alias Jan Khaskheli is facing trial in Sessions Case No,59 of 1997 before Additional Sessions Judge, Sehwan, arising out of F.I.R. No,670 of 1997, dated 11-11-1997 of Police Station Bhan, District Dadu, under sections 302 and 34, P.P.C. The contents of F.I.R., lodged by informant Muhammad Saleh Khaskheli, are reproduced herein below:--- "Complaint is that I am laborer, since last 30 years. I am residing at Dadu. My cousin Rakhial is matrimonially connected with Eiden Panhwar. They were residing in village Chakar Khan Khushik.
About one year back due to some dispute over domestic affairs Eiden Panhwar shifted bag and baggage from village of Chakkar Khan Khushik to his land adjoining village Mario Pan war. Due to the dispute over domestic affairs Eiden Panhwar had issued threats of death to my cousin Rakhial alias Mircho and they were also not on talking terms. Yesterday, on 11-11-1997 I went to my cousin Rakhial alias Mircho in connection with a personal work. After talking with each other, we slept. At about 12-00 in the night firing was made on us, simultaneously we heard cries. I and Khadim Hussain got-up and saw four persons scaling the hedge of the house from western-southern corner. We challenged them and saw that Mircho was lying on the ground by the side of cot and he was raising cries. We rushed towards Rakhial and noticed fire-arm injuries on his left occipital region and left shoulder. Blood was oozing out from his injuries. He went unconscious. Thereafter, Cadim Hussain informed me that todae in the evening Eiden (2) Jummon both sons of Khuda Bux,
(3) Raman son of Ahmed Panhwar, all the three residents of adjacent village Rorio Pan war, (4) Jan Muhammad alias Jano son of Sher Khan Khaskheli, resident of village Azam Zadora, Taluka Sakrand were seen roaming outside their house. We arranged a vehicle and brought injured Rakhial alias Mincho at Bhan Hospital looking towards the serious condition of injured Rakhial alias Mincho I went to Police Station Bhan, where from I obtained the letter for treatment and delivered the same to Bhan Hospital Authorities. Thee referred the injured to Civil Hospital Authorities. They after giving first aid to injured Racial alias Mincho referred him to Jamshoro. Khadim has taken away his brother to Jamshoro and now I have come for report. There is dispute between my cousin Rakhial alias Mincho and Eiden Pan war over domestic affairs. Eiden Panhwar had issued him threats of death. We suspect that Eiden, (2) Jammon both sons of Khuda Bux Panhwar, (3) Ramzan son of Ahmed Pan war all the three resident of Morio Panhwar, (4) Jan Muhammad alias Jano son of Sher Khan Khaskheli, resident of village Azam Zardari, Taluka Sakrand with common intention due to domestic dispute, mae have caused fire-arm injuries to my cousin Rakhial alias Mincho in order to kill him. Complaint is lodged. Investigation be made."
2. The injured Rakhial alias Mircho subsequently succumbed due to injuries, therefore, police added section 302, P.P.C.
3. Applicant/accused applied for bail before the trial Court but the same was refused by impugned order, dated 2-4-1998.
4. I have heard Mr. Ghulam Shabbir Memon, learned counsel for the applicant/accused and Mr. Abrader Ali Bloch, learned counsel for the State. Latter very candidly conceded to the grant of bail. I have also perused the material placed on record as well as police papers with the assistance of learned counsel for the parties.
5. The bare perusal of F.I.R. Shows that only suspicion was shown against the applicant/accused and three other persons, whose names also transpire in the F.I.R. The Mashirnama of verdant reveals that no blood was found on the cot on which deceased was sleeping at the time of incident, or at the scene of offence. On 13-11-1997 after the arrest of applicant/accused his licensed gun was recovered. The gun was not sealed and Mashirnama of recovery does not disclose that any smell of gun powder was coming out from the barrel of gun. Moreover, it was not recovered from the exclusive possession of the applicant/accused. The alleged incident took place on 11-11- 1997 at about 11'0 clock in the night and in the afternoon of 12-11-1997 F.I.R. Was lodged by one Muhammad Saleh, cousin of the deceased and alleg-witness of the occurrence but no role whatsoever has been ascribed to the applicant/accused nor it is stated therein that he was identified. After about 15 days of the alleged incident i,e, 26-11-1997 statement of P.W. Khadim Hussain (brother of deceased) under section 164, Cr.P.C. Was recorded wherein applicant/accused was implicated by him. He has stated therein that he identified the applicant/accused in the moonlight. On the very same day identification test as well as foot print test of applicant/accused along with three other persons, named in the F.I.R., was held wherein applicant/accused was picked-up.
6. It is well settled that identification on moonlight and foot print test are veer weak pieces of evidence. No reason whatsoever for belated identification parade or foot print test has been assigned. Learned counsel for the State has also pointed out that statement of foot tracker under section 161 or 164, Cr.P.C. Was not recorded neither the Mashirnama of foot print test is available in the police record nor there is any note by the Investigating Officer to the effect that any such Mashirnama was prepared. He has also supported the learned counsel for the applicant/accused that in the case in hand not a single private independent witness was examined or cited by the prosecution and there was no motive for the applicant/accused to commit the present crime.
According to him, the motive disclosed in the F.I.R. Is that there was enmity between decease and Eiden Panhwar and Eiden Panhwar used to issue threats of dire consequences to the deceased and not the applicant/accused.
7. Considering all aspects of the case, I am of the view that, prima facie, there are reasonable grounds to believe that applicant/accused is not guilty of the offence and case necessitate further inquire as contemplated under section 497(2), Cr.P.C.
8. On 4-6-1998 I had granted bail to the applicant/accused by me short order. Above are the detailed reasons of the same.
9. Observations made hereinabove are of tentative in nature and the trial Court shall not be influenced thereby in any manner whatsoever at the time of. Final adjudication of the matter and it will be free to conclude and arrive at its own findings on merit after evidence is recorded in the case.