1. The facts leading to present application for bail are that applicants/accused Mehar and Saifal are facing trial in S.C. No,177 of 1998 under sections 302, 324, 504 and 34, P.P.C. Before the learned Additional Sessions Judge, Sehwan. It arose out of F.I.R. No,3 of 1998 of Police Station Thebath Taluka Kotri, District Dadu.
2. The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Safar on 25-6-1998 are reproduced hereinbelow:-- "I am Hari on the land of Nathan Shah and have cultivated 'Tir and Juwar'. Today in the morning I alongwith my father Idrees aged about 50 years brother Ghulam Rasool and Allah Obhayo were watering the land and were also cleaning the land by cutting and removing bushes. At that time two buffaloes of Patasho were in our 'Juwar' and Tir crop, we had driven out buffaloes from our cultivation. On this at about 11-00 a.m. Patasho armed with hatchet, Suhib armed with Khahi, Saifal armed with Khahi and Mehar armed with hatchet came there running from their lands and abused us and asked us as to why we had driven out their buffaloes? After saying so, Patasho and Suhib caused injuries with hatchet and Khahi on head of my father Idrees who fell down. Saifal and Mehar caused Khahi injuries to my brother Ghulam Rasool on head and other parts of body, while Saifal and Mehar caused hatchet and Khahi injuries on wrist of my brother Allah Obhyao. We raised cries.
3. The accused persons went away to their houses. Thereafter, I went, and saw that my father was lying dead. Leaving my brothers over dead body of my father I went to Allah Rakhio and apprised him of the incident. He advised me to lodge the report with the police. I have come for report. Due to driven out the cattle by us, the above accused Patasho and Suhib with their common intention caused murder of my father Idrees, and accused Mehar and Saifal with intention to cause murder of my brothers Allah Obhayo and Ghulam Rasool caused them injuries with hatchet and Khahi. In the fight Saifal and others have also received injuries at our hands. I complain justice may be done."
4. The applicants/accused applied for bail before the trial Court but the same was declined by impugned order, dated 20th May, 1999.
5. I have heard Mr. Muhammad Jumman Memon, learned counsel for the applicants/accused and Mr. Mukhtar Ahmed Khanzada, learned counsel on behalf of Advocate-General for the State. The latter opposed the grant of bail. I have also perused the material placed on record as well as police record with the assistance of the learned counsel for the parties.
6. The perusal of the record shows that the allegation against the applicants/accused Mehar was that he was armed with hatchet and Saifal with Khahi. They did not cause any injury to the deceased. Only allegation against them was that they caused injuries to P.Ws. Allah Obhayo and Ghulam Rasool alongwith other accused. The co-accused Suhib was armed with Khahi and Qadir Bux was armed with hatchet. The medico-legal certificate of injured P.W. Allah Obhayo and Ghulam Rasool shows that each one had received one incised wound. Thus, the injuries on the person of P.Ws. Allah Obhayo and Ghulam Rasool does not commensurate with the number of accused and blows ascribed to the applicants/accused. The Mashirnama of recovery shows that during the course of investigation police recovered hatchet from the possession of applicant/accused Mehar and Khahi from applicant/accused Saifal. Both the crime weapons were not blood-stained. The further perusal of the record shows that the incident was outcome of sudden flare up. Looking towards the peculiar facts and circumstances of the case I am of the considered view that applicability of section 34, P.P.C. Could be ascertained at the time of trial upon valuation of the evidence brought on record by the prosecution. Thus, the plea of applicants/accused merits consideration. In this context I am fortified by the decisions reported in the cases of (i) Jaffar and others v. The State 1980 SCM R 784, (ii) Nosherwan alias Nosha v. The State 1994 PCr.LJ 1476, (iii) Malik Muhammad Ishaque and another v. The State 1995 PCr.LJ 933 and
(iv) Asghar Masih and another v. The State 1995 PCr.LJ 544. Moreover, the applicants/accused are in jail since more than 1-1/2 years.
7. Consequently, the applicants/accused are granted bail in the sum of Rs,2,00,000 (two lac) each and P.R. Bond in the like amount to the C satisfaction of the trial Court.