1. ' The applicant seeks bail in a case under sections 302, 34 and 337-H(2), P.P.C. Bearing Crime No,51 of 1997, Police Station Ghotki, presently pending trial before the learned Special Judge (S.T.A.) Court Ghotki.
2. ' The prosecution case is that on 14-3-1997, complainant Muhammad Yousif, his brother Muhammad Amin alongwith Abdul Majid and Muhammad Sidiq were coming out of the mosque after offering Juma prayers. It is alleged that accused Ghulam Nabi armed with a T.T. Pistol, Pirano armed with a gun, Fazal with a pistol and the applicant armed with revolver came across the complainant party challenging them that they (complainant party) had filed a false case against them and that they would not spare them (complainant party). It is further alleged that accused Ghulam Nabi fired from his T.T. Pistol at Muhammad Amin and accused Fazal also fired pistol shot at Muhammad Amin as a result of which Muhammad Amin fell down and went unconscious.
3. ' Applicant Shafi Muhammad and accused Pirano are alleged to have fired in the air. After the accused left the Wardat the injured was taken to hospital where after the F.I.R. Was lodged.
4. Muhammad Amin later on succumbed to the injuries.
5. ' We have heard the learned counsel for the applicant and the State. We have also heard Mr. Mumtaz Ali Siddiqui learned counsel for the complainant and have also perused the police papers.
6. Learned counsel for the applicant has contended that the applicant has not caused any injury to deceased Muhammad Amin or anyone else. There is no overt act against him except the aforesaid allegation which according to the learned counsel is proverbial in nature and a tendency in order to punish and implicate all the able-bodied persons of the family. He has further stated that all the P.Ws. Are interested and are hostile to the applicant due to enmity mentioned in the F.I.R. In support of his submissions he has placed reliance on the following authorities:--
(i) Muhammad Sadiq and another v. State 1996 SCM R 1654
(ii) Mumtaz Hussain and 5 others v. State 1996 SCM R 1125.
7. ' Mr. Mumtaz Ali Siddiqui learned counsel for the complainant has opposed the grant of bail and has asserted that the applicant was present at the time of incident and by firing in air he has facilitated the co-accused in the commission of offence. According to him applicant is not entitled to the grant of bail. Learned State Counsel has opposed the grant of bail for the reason that applicant shared common intention with co-accused and that section 34, P.P.C. Has been rightly applied.
8. We have given our anxious consideration to the facts and circumstances of the case and the contentions raised by the counsel for the parties. There is no denial of the fact that the allegation against the applicant is that of firing in air. Admittedly he caused no harm or did any damage to anybody. His responsibility in commission of crime cannot be equated with the co-accused who has fired at the deceased as a result of which the deceased died. The application of section 34, P.P.C. Can be determined when evidence is brought on record. Having been persuaded by the authorities cited above by the learned counsel for the applicant bail was allowed to the applicant by a short order, dated 23-6-1998 on furnishing two sureties each in the sum of Rs,2,00,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court and these are the reasons for the same.