1. ' By a short order, dated 13-7-1998, bail was refused to the applicants in this case. Following are the reasons for it.
2. ' This is an application by applicants/accused for grant of bail in a case registered against them under sections 302, 148, 149 and 114, P.P.C.
3. Briefly the facts of the case as made out in the F.I.R. Are that one Paro, an uncle of the complainant was shot and killed after an ambush jointly by accused (1) Khamiso (2) Arz Muhammad (3) Nazir
(4) Bagh Ali (5) Ranjho because of family vendetta. Out of these accused Khamiso, the applicant No,1 was allegedly armed with a country made pistol, Arz Muhammad and Nazir with staffs (Lathies) while Bagh Ali the applicant No,2 was allegedly armed with guns. It ids further alleged in the F.I.R. That the applicant No,1/accused and applicant No,2/accused fired at Paro with their pistol and gun respectively, resulting in his receiving injuries on various parts of his body to which he succumbed.
4. ' The learned counsel for the applicants in his efforts to seek bail for the applicants invoked section 497(2), Criminal Procedure Code. Pursuant whereto he argued that the evidence of Medical Officer who carried out the post-mortem on the dead body brings out that both the fatal wounds on the dead body were inflicted by the same gun and not by a gun as well as a pistol, the two fire-arms alleged to have been used in the encounter. Consequently according to him, it cannot be said as to which of the accused was responsible for firing the fatal shot/shots and, thus, the allegations against both accused are of general nature and require further inquiry. He also dwelled on slight variance in the version in he F.I.R. And Medical Officer's evidence about the angle of entry of the shot/shots in the dead man's body. Mr. Shamsuddin Kobhar, the learned counsel for the applicants relied on the authorities 1980 SCM R 784 and 1987 PCr LJ 1404 in support of his contention that where it cannot be established as to who caused fatal injury, there is a need for further enquiry leading to grant of bail.
5. 'Mr. Ghulam Sarwar Korai, the learned counsel for the State, opposed the grant of bail and contended that at this stage it is immaterial as to whose shot proved fatal. In support of his contention he relied on 1995 SCM R 1765.
6. In my view, the reliance of Mr. Kobhar on the authorities cited by him is misconceived as in both those cases there was some doubt as to whether all the accused shared a common intention to commit the offence of 'murder whereas in the instant case it is clear that all the accused including the applicants, who were the only ones armed with fire-arm, had common intention to commit the offence of murder in pursuit of a family vendetta. Consequently, following the authority cited by Mr. Korai i,e, 1995 SCM R 1765, it is immaterial as to whose shot proved fatal. I do believe that the submissions of the learned counsel for the applicants transcend the scope of the tentative assessm ent and would require the Court to indulge in the exercise of a deeper appreciation of the evidence, which at this stage cannot be resorted for various reasons including that it may tend to prejudice the final outcome of the case itself.
7. ' Moreover, the Honorable Supreme Court in a separate order written by Mr. Justice Saiduzzaman Siddiqui in the case reported in 1995 SCM R 1765 clearly lays down that:- "a case would only fall within the scope of further enquiry under section 497(2), Cr.P.C. If the Court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-boilable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of a finding to this effect, there will be no occasion for the Court to hold that the case is one of further enquiry. It may be mentioned here that in order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non-boilable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the Court if the case is still at the stage of investigation will make a tentative assessm ent of the allegations against the accused persons in the light of the material so far collected by the Investigation Agency to connect him with the offence. In case the trial has commenced, the Court taking cognizance of the case may, in addition to the material collected by the police, also take into consideration the evidence produced before it."
8. Looking at this case in the light of the above observation of the Supreme Court it is clear that the applicants along with the other accused have been charged with common intention to murder the deceased and the applicants themselves have been specifically charged with firing at the deceased with their weapons. The evidence of the Medical Officer is also not free of ambiguity about the source of fatal wound consequently, at this stage of proceedings it cannot be said, based on the material before the Court, that the case of the applicants falls within the scope of further enquiry under section 497(2), Cr.P.C. In the result bail is refused to the applicants and this application is disposed of.