1. ' I would like to decide Criminal Bail Applications Nos.134 and 135 of 2000 by a single order, as both of them arise out of one F.I.R. Bearing Crime No,3 of 2000 of Police Station Buxapur.
2. ' Brief facts giving rise to this bail application are that on 5-1-2000 at 10-20 hours one Arbelo lodged F.I.R. Stating therein that his brother Ranjho owned vegetable shop, on which he employed one boy namely Zahoor nephew of Abdullah. It is stated that Abdullah returned from Saudi Arabia about 1- 1/2 months back and asked Ranjho that his nephew be ousted from service. After some time Zahoor camp and beseached Ranjho to re-employ him in service over which Abdullah was annoyed and declared that he would not spare Ranjho as he has promised with Zahoor to bring him back in the service.
3. ' On 4-1-2000 complainant along with Rahamdil and Siddique went to the shop of Ranjho at about 7-00 p.m. And asked him to close the shop and attend the religious function being celebrated in the new mosque due to the night of 27th Ramdhan-ul-MubaraK, upon which Ranjho closed the shop and accompanied them up to the street and thereafter Ranjho asked them that he is going to urinate in the Otaq of Habibullah and asked them to wait for him outside. After saying so Ranjho went inside the Otaq. The complainant party found that after some time Abdullah, Budho, Ali Sher and Tahir reached near the Otaq. Out of them Budho waited at the outer door and the remaining three persons entered the Otaq. It was about 7-30 p.m. When complainant party heard cries of Ranjho they rushed to enter the Otaq but they were restrained by Budho, who was armed with Lathi.
4. They pushed him and went inside. They found that all the three accused were turning Ranjho down on the ground, who was raising cries. They challenged them not to kill him, over which Abdullah picked up T.T. Pistol from the fold of his Shalwar and fired on the head of Ranjho and culprits decamped. It is stated that Ali Sher was armed with hatchet, Tahir and Budho were armed with Lathis. The complainant has stated that he could not arrange for the conveyance at night time and he removed the injured after picking up the conveyance but the injured died on the way.
5. ' The police after recording F.I.R. Carried out investigation and arrested the accused.
6. ' It is contended by the learned counsel for the applicants that medical evidence is in conflict with the ocular evidence. The medical evidence shows that the death of deceased was instantaneous but the F.I.R. Reveals that deceased Ranjho died in late hours of the night. It is stated that the accused have been implicated due to enmity and no overt act has been attributed to accused Ali Sher and Tahir. It is argued that the case of Ali Sher and Tahir is identical to co-accused Budho who is granted bail by the trial Court. It is stated that the F.I.R. Is delayed by 15 hours and the explanation is unreasonable. It is contended that the contents of stomach are not in conformity with the ocular account. It is pleaded that place of incident is thickly populated area but no independent witness is cited. The reference is made to Abdul Hayee and 2 others v. The State (1996 SCM R 555) Hiddu alias Hidayatullah v. The State (1982 PCr.LJ 30).
7. ' Mr. Ali Azher Tunio learned Assistant Advocate-General has conceded for the grant of bail to co- accused Ali Sher and Tahir but he has opposed the bail to applicant Abdullah. He has stated that fatal injuries are attributed to accused Abdullah but so far accused Ali Sher and Tahir are concerned they were armed with hatchet and Lathi respectively but they have not used the same.
8. He argued that the case of these two accused is identical to co-accused Budho who is granted bail by the trial Court.
9. The perusal of F.I.R. Shows that case is lodged after delay of 15 hours. The fatal injury is attributed to accused Abdullah who is stated to have picked up pistol from fold of his Shalwar all of sudden at the spur of moment. The incident was witnessed by complainant Arbelo, Rahamdil and Siddique.
10. This ocular evidence fully implicates the applicant Abdullah for having fired fatal shot to the deceased and caused his death. His bail application is opposed by the learned A.A.-G. Hence he does not deserve concession of bail and his bail application is dismissed. The case of remaining two accused Ali Sher and Tahir is however, distinguishable as they were armed with hatchet and Lathi but they did not use the same. So far vicarious liability and the common intention is concerned, it is yet to be determined as the case of prosecution is that accused Abdullah at the spur of moment picked up pistol from fold of his Shalwar and fired at deceased Ranjho. This evidence is yet to come on record at the time of trial whether remaining accused had the knowledge that main accused was armed with pistol and was gbing to commit murder of Ranjho.
11. Moreover, their case falls in similar situation to that of the accused Bhudo who is granted bail by the trial Court They also deserve bail on the principle of consistency. No overt act has been attributed to them and motive is also attributed to main accused Abdullah. For them, therefore, at this stage cannot be held that there appear reasonable grounds to believe that they were guilty of the offence falling within prohibitory clause of section 497(i), Cr.P.C. The applicants Ali Sher and Tahir are granted bail in the sum of Rs,200,000. Each and P.R. Bond in the like amount to the satisfaction of trial Court.
12. ' The observations are tentative in nature and the trial Court should not be influenced by them at the time of dictating the judgment.