1. ' The applicant alongwith 8 others is facing trial for the offence under section 302/307 read with sections 149 and 120-B, P. P. C. And 13-D of the Arms Act.
2. The prosecution case as set up in the F. I. R. Is that on 14-10-1977 at about 12-30 p. m. The complainant alongwith Mian Abdul Haq, Bashir Ahmad, Shabbir Ahmed and Abdul Salam were driving in a jeep and when they reached the Bus-stand Dharki, they were attacked with fire-arms from the Balcony of the hotel of one Haji Shar as a result of which Bashir Ahmad died and Mian Abdul Haq and 2 other persons, namely, Mohammad Hassan and Subhani, sustained fire-arms injuries. The incident was reported at the Police Station, Dharki at 1-45 p. m. Shortly thereafter, S. H.
0. Rashi' Qureshi of Dharki Police Station lodged another F. I. R. On behalf of the State at 2-15 p.m.
3. Wherein he stated that on hearing gunshot reports h. Went to the vardat where he saw five persons of whom 2 were armed wit rifles and 2 with guns running away from the vardat towards the cultivation The police party pursued them whereupon the assailants fired at the poll party as a result of which he, the S. H.
0. Rasheed Qureshi, was hit o the left ankle and the assailants ultimately made good their escape by crossin the Nihal Canal. The applicant twice applied for bail in the Court of II Additional Sessions Judge, Sukkur but on both the occasions his applicatio was rejected by the learned Sessions Judge vide his order dated 7-11-1977 an 21-1-1978. Hence this application.
4. ' Mr. Mohammad Hayat Junejo, learned counsel for the applicant contended that one of the accused namely, Dil Sher, who was also assign the same part of being armed with a rifle at the time of firing at th complainant party, was' released on bail by the trial Court on the groun that the Medical Board had certified and the learned Judge himself ha observed that the said Dil Sher was incapable of having participated in th incident in view of the physical infirmities suffered by him, which made the entire F. I. R. Doubtful, moreso, when the S. H. O. Rashid Qureshi who was attracted by the gun reports and had seen only five persons running away did not name the applicant, although he knew the applicant, and, therefore, the applicant was entitled to be released on bail.
5. ' The learned counsel next contended that the only two witnesses, namely Mohammad Hassan and Subhani, were injured in the incident and were named in the F. I. R. Have not named the applicant to be amongst the culprits although the witness Subhani knew the applicant and had, on the contrary, filed an affidavit dated 14-12-1977 sworn before the S. D. M., Mirpur Mathelo, stating that he knew the applicant Aftab Abmad but he was not amongst the assailants.
6. ' The learned counsel finally contended that the applicant had been falsely implicated in this case on account of enmity with one Jam Munir who had contested and lost the elections in March, 1977 to the applicant's father Mumtaz.
7. Mr. A. Sattar Shaikh, learned Assistant Advocate-General, opposin the bail application stated that all the contentions raised by the learned counsel for the applicant pertained to the merits of the case which could not be considered at this stage by this Court and since in the F. I. R. All the accused have been named and assigned the specific role of firing at the deceased, it will not be proper to grant bail at this stage and suggested that the application for bail be considered after evidence of some materia witnesses is brought on record. Mr. Mohammad Hayat Junejo seeing reason in the suggestion made by the learned Assistant Advocate-General, stated that he welcomed it but stated that according to his experience it would not be possible for the trial Court to record any evidence in this case for quite some time in view of the fact that some of the accused are absconding. Mr. Sattar Shaikh, thereupon replied that he would see that some evidence, at least of independent witnesses, is recorded by the A trial Court within two months after which the applicant could repect his bail application. Mr. Mohammad Hayat Junejo feeling satisfied with the statement, stated that for the present he did not press this application and would repeat the application after some evidence is recorded or if the case makes no progress within two months.
8. ' In view of the statement rightly made by the learned counsel for the applicant, this application is dismissed as withdrawn. The trial Court I directed to proceed with the case and record evidence at least of some material witnesses within two months, as assured by the learned Assistant Advocate-General. In case it is not found possible to proceed with the case within two months for valid reasons, it will be open to the applicant to repeat fresh application for bail.