1. ' In this application the applicant Mahmood has prayed for bail, whose bail plea has been rejected by Additional Sessions Judge, Umerkot, before whom he was facing trial for the offence punishable under section 302 of Qisas and Diyat Ordinance and 341, 342 and 114, P.P.C. (Crime No,16 of 1997 Police Station Shadi Palli).
2. ' The learned counsel for the applicant has submitted that at first instance the F.I.R. Of this incident was lodged by co-accused Kamal on 19-8-1996 as F.I.R. Crime No,38 of 1996 at Police Station Shadi Palli, wherein it was stated that deceased Mst. Bhagan was murdered by four persons namely Manak, Piaro, Fateh Muhammad and Pario. In the said F.I.R. Qadir Bux (now accused in this case)
3. Mst. Nabiat and Mst. Alma were shown as witnesses. The police after usual investigation disposed of the case on 2-3-1997 under (G) clause and then after about 5 weeks of the disposal of above F.I.R. Viz 8 months after the incident a second F.I.R. Of the same incident was lodged at the same police station by Dur Muhammad , the brother of deceased, as Crime No, 16 of 1997, wherein present applicant, Kamal, Qadir Bux and Akbar (four persons) were shown as accused and the allegation was that the co-accused Kamal fired at the deceased Bhagan, at the instigation of co- accused Qadir Bux, whereas the allegation against the present applicant, is that he was present at the scene of offence. Mst. Bhagan is said to have died on account of receiving fire-arm injury at the hands of Kamal (complainant in Crime No,38 of 1996).
4. ' The learned counsel for the applicant has argued that the present applicant is falsely implicated and there is absolutely no evidence against the present applicant to prima facie say that he has committed the offence of murder. According to present F.I.R. Mst. Nabiat (the daughter of deceased) and Mst. Alma (sister of the deceased), are the eye-witnesses of the incident and these two ladies were also shown as witness in the earlier report, lodged by co-accused Kamal. It is argued that the statement under section 161, Cr.P.C, of these two ladies were recorded on the very first day of the incident and the applicant was not implicated in any manner or even named as accused in the said F.I.R. And as such the involvement of the applicant by the same two ladies after 8 months viz. On 11-4-1997 and that only to the extent of showing the presence of the applicant at the scene of the incident, require further enquiry in respect of involvement of the applicant in the case. The learned counsel has further argued that the place of incident in both the F.I.Rs. Is one and the same, except that the complainants are different. The learned counsel has submitted that the applicant is in custody since last more than one year and the trial has not started. The learned counsel in support of his arguments has relied upon the following case-law:
(1) Abdullah Khan v. Abdul Qayyum and another (1996 SCM R 493).
(2) Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125).
(3) Muhammad v. The State (1998 SCM R 454).
5. ' The learned counsel, appearing for the State, has not controverted the factual aspect of the case, given by the applicant's counsel and he has, on the contrary, supported the arguments of the learned counsel for the applicant and thus raises no objection to the grant of bail to the applicant.
6. I have considered the arguments of the learned counsel of both sides' and I am of the view that the applicant admittedly has neither caused any injury to the deceased nor any role has been attributed to show his involvement in the commission of murder of the deceased. The two eye- witnesses, namely Mst. Nabiat and Mst. Alma, the daughter and the sister of the deceased respectively had not involved the present applicant in their 161, Cr. P.C. Statements, recorded on 20th August, 1996 and the involvement in their statement recorded on 11-4-1997 makes out a case of further enquiry. The case law cited by the.
7. ' Learned counsel for the applicant, also support him, as in the reported cases, the A accused were not assigned role of causing injury to the deceased and have been granted bail.
8. In view of the above facts and circumstances, I am of the view that the applicant has succeeded to make out a case of further enquiry and, therefore, the applicant deserves the concession of bail.
9. ' Accordingly, the applicant is granted bail in the sum ofRs,200,000 and P.R. Bond in the like amount to the satisfaction of Trial Court.