1. ' Applicants, Haleem son of Khan, Amir Bux son of Feroze Khan, Ghulam Rasool son of Lala and Abdul Fateh son of Allah Rakhio are facing trial alongwith others in an F.I.R. No,124 of 2000 of Police Station Mirpur Mathelo, lodged by one Muhammad Hassan, registered under sections 302, 324, 148 and 149, P.P.C. After due investigation of the said crime, the charge-sheet was filed in the Court of law. The bail application was moved in the trial Court, but it was dismissed by an order, dated 30- 10-2000 by the learned IIIrd Additional Sessions Judge Mirpur Mathelo. Hence, this bail application has "been filed.
2. ' The brief facts of the prosecution case, as stated in the F.I.R., lodged by Muhammad Hassan on 29- 7-2000 at Police Station Mipur Mathelo, are as follows:--- "Complaint is that I reside on the above address. Yar Muhammad aged about 25 years is my younger brother and Bashir son of Lal, by caste Mahar reside some distance away from our house, who are relatives. Today I my brothers Bangul, Ghulam Hyder Mahar were sitting in the house and Yar Muhammad was sitting in the house just away from us. At about 1315 hours, accused (1) Bashir son of Lal Mahar armed with gun, (2) Haleem s/o Khan Sahib, (3) Ghulam Rasool s/o Lal, (4) Amir Bux son of Khan Sahab, (5) Abdul Fattah son of Allah Rakkio, all by caste Mahar residents of Soofi Rehmatullah armed with lathies came. Bashir Ahmed Mahar abused my brother Yar Muhammad and said that you are Karo with Mst. Gujar Mahar and you will be murdered. My brother Yar Muhammad to save his life ran outside the house and the accused persons followed him and we gave Wasta of Allah to the accused persons not to act unjustly, on which the accused persons armed with lathies pointed their lathies towards us not go near them. We due to fear of arms remained silent. My brother reached at the house of Dagan Manglawar and the accused Bashir directly fired upon him from his gun with intention to commit his murder, which hit him, he raised cries and fell down. Thereafter, accused disclosed that we have killed Karo and let us go to murder Kari Mst. Gujjar, thereafter the accused went towards their house and accused Bashir in our presence killed Mst. Gujar aged about 18 years by firing from his gun, who was sitting outside the house, who raised cries and fell down and died. Accused Amir Bux Mahar cried that he is injured.
3. Thereafter, I and witnesses saw Yar Muhammad, he had received injury on right side of back and crossed from right side of chest, the blood was oozing from the wounds. The accused after committing murder of Mst. Gujar went away by challenging. I and witnesses took Yar Muhammad to Hospital, Mirpur Mathelo for his treatment, wherefrom he was referred to Sukkur, but he succumbed to the injuries on the way. Thereafter, we came back and leaving dead body and the witnesses over the dead body in Taluka Hospital, Mirpur Mathelo and reported that abovementioned accused with common intention, by levelling the false allegation upon my brother Yar Muhammad murdered him. I am complainant, justice be done."
4. ' I have heard the learned counsel for the applicants/accused, Mr. Shafquatullah Sheikh the learned Advocate for the complainant and Mr. Abdul Ghafoor Pirzada, learned counsel for the State. Both counsel have vehemently opposed the grant of bail to the applicants/accused.
5. ' Mr. Mumtaz Ali Siddiqui, learned Advocate for the applicants argued that the applicants/accused have not been attributed any role in the commission of murder of deceased Yar Muhammad and Mst. Gujar and according to investigation the present applicants were found innocent in the investigation by the Investigating Officer and S.D.P.O. But S.S.P. Ghotki did not endorse the opinion of confirmation and opined that all the nominated accused be sent up to stand trial. It is further contended by the learned Advocate for the applicants that the motive was not against the present applicants/accused but at the most it was against co-accused Bashir Ahmed, who caused fatal shot at deceased Yar Muhammad and Mst. Gujar and applicants did no cause any injury and no overt act is alleged, therefore, the case against them falls under section 497(2), Cr.P.C. The learned counsel for the applicants has relied upon the following case law, reported in 1999 SCM R 1360 (Faraz Akram v. The State), 1995 SCM R 1118 (Abdur Rehman v. Tanveer Hussain and 4 others), 1999 SCM R 1320 (Attaullah and 3 others v. The State and another), 1996 SCM R 1654 (Muhammad Sadiq and another v. The State) 1995 Pa. U 310 (Wali Muhammad v. The State), 1986 M LD 2665 (Javid Iqbal v. The State), 1978 SCM R 7 (Muhammad Akbar and 4 others v. The State and another), 1978 SCM R 357 (Basharat Hussain v. Ghulam Hussain and others) and 1982 SCM R 440 (Gulam Rasul v. The State and 4 others), and prays for grant of bail.
6. ' Mr. Shafqatullah Sheikh, counsel for the complainant, has opposed the bail prayer and submits that present applicants/accused have actively participated with co-accused Bashir Ahmed and they in their hot pursuit restrained the complainant party at the show of lathies, while running after the life of deceased and they actively committed the crime of two persons on the false plea of Karo-Kari. Learned Advocate has relied upon the case, reported in 1996 SCM R 1023 (Ghlam Nabi v.
7. The State).
8. ' Learned State counsel has also opposed the bail applications, that applicants/accused are vicariously liable for the commission of the offence and extended moral support to the main accused Bashir Ahmed, who had fired at deceased Yar Muhammad and Mst. Gujar.
9. ' That in the F.I.R., it is clearly alleged that co-accused Bashir Ahmed abused Yar Muhammad and declared that he was Karo with Mst. Gujar and then committed their murder. The applicants/accused have not caused any injury to the deceased or to the complainant party.
10. During the course of investigation, the Investigating Officer and S.D.P.0/. Found them innocent and recommended their names to be placed in column No,2 of the challan, whereas the S.S.P. Did not agree with them and issued directions to submit the challan. Although the opinion of police officer is not binding upon the Court but their opinion regarding innocence of the applicants carries some weight. The motive is alleged; against main accused. Bashir Ahmed by the complainant and his witnesses regarding illicit terms of deceased Yar Muhammad and Mst. Gujar. There are statements of some other witnesses in favour of the applicants in respect of plea of alibi but there is no positive evidence.
11. 'The circumstances thus reveals that it was only Bahir Ahmed, who fired fatal shot at both deceased and applicants had nothing to do with the said crime for causing injuries to the victims.
12. The question of vicarious liability of the applicants will be determined at the trial. The applicants are in custody since 20-8-2000. I am of the view that the case against the applicants requires further enquiry covered by section 497(2), Cr.P.C.
13. ' Having been persuaded by the above dicta, I allow bail to the applicants, namely, Haleem son of Khan, Amir Bux son of Feroze Khan, Ghulam Rasool son of Lal and Abdul Fattah son of Allah Rakhio subject to their furnishing one solvent surety each in the sum of Rs,2,00,000 (Rupees two lass only) and P.R. Bond in the like amount to the satisfaction of the trial Court.