1. ' The facts leading to the present application for cancellation of bail are that respondents/accused Muhammad Hassan son of Sarang, Gulzar son of Nabi Bux and Mir Muhammad son of Nabi Bux by Caste Subzoi are facing trial in Sessions Case No,64 of 1999 before the learned Hnd Additional Sessions Judge, Kandhkot under sections 302, 34, P.P.C. Which arose out of F.I.R. No,21 of 1999 of Police Station "B" Section, Kandhkot, dated 6-3-1999.
2. ' The brief facts of the prosecution case as disclosed by the applicant/complainant Lohar son of Dad Ali by Caste Jafferi are reproduced hereinbelow:-- ' "Complaint is that deceased Saifal is my nephew who was working as Jamadar at Mukhi Mill. At the same Mill Gulzar son of Nabi Bux Sabzoi, Nabi Bux son of Sarang Sabzoi were working as Labourers. Today early in the morning deceased Saifal Khan, myself, Arbelo alias Qaimuddin son of Muhammad Ali Jafferi and Gulsher son of Dad Ali went to Kandhkot Town, we had some work.
3. Deceased Saifal went to attend his duty at Mill. We all went to Mukhi Mill where deceased Saifal Khan and accused Gulzar and Nabi Bux quarrelled with each other over monetary transaction.
4. They caused kicks and fist blows to each other. We intervened and stopped them from further fight.
5. Ali Nawaz son of Janoo, Manan alias Mir Muhammad son of Nabi Bux, Bahadur son of Ali Nawaz, all by Caste Sabzoi were present. They planned with Gulzar and Nabi Bux. We went to Town for our work and abovenamed all accused also went away from Mukhi Mill. We after making purchases of household articles returned back to Mukhi Mill. Saifal Khan also accompanied us. We proceeded to our village by Paka Path. When we reached near the cultivated land of Mehrban Manganhar and Wali Muhammad Sabzoi at about 4 p.m., we saw that accused Muhammad Hassan son of Sarang, Nabi Bux son of Janoo Manan, Gulzar son of Nabi Bux all by Caste Sabzoi armed with guns, Ali Nawaz son of Janoo Manan, Bahadur son of Ali Nawaz, Mir Muhammad son of Nabi Bux by Caste Sabzoi emerged from wheat crop. The accused Ali Nawaz instigated accused Muhammad Hassan, Gulzar and Nabi Bux. At his instigation they fired at Saifal, with intention to commit his murder. The fire hit him. He cried and fell down. Due to fear we did not go nearer to them. Thereafter, all the accused ran raising salogans towards their houses, which are situated at the distance of 100 paces from the place of incident where Saifal was murdered. Their houses are located in the open ground. Within our sight they murdered one woman. We learnt that the name of the woman murdered by them was Mst. Haki daughter of Wali Muhammad Sabzoi. Thereafter, we saw Saifal Khan. He was bleeding and lying dead. I after leaving the abovenamed witnesses on the dead body have come at police station to lodge the report. The abovenamed accused in order to take revenge of earlier quarrel with pre-concert and in collaboration with Ali Nawaz, Bahadur and Mir Muhammad, duly armed with lathel weapons, at the instigation of Ali Nawaz, the accused Muhammad Hassan, Gulzar and Nabi Bux have murdered my nephew Saifal Khan by causing him gun-shot injuries. I complain. Action be taken."
6. ' The respondents/accused moved bail application before the trial Court and they were granted bail by the learned trial IInd Additional Sessions Judge, Kandhkot by impugned order, dated 20-6- 2000.
7. ' I have heard Mr. Habibullah Shaikh learned counsel for the applicant/complainant and Mr. Shaikh Amanullah learned counsel on behalf of respondents/accused 1 to 3 as well as Mr. Mumtaz Ali Siddiqui learned counsel on behalf of the A.A.-G. For the State. The latter supports impugned order and opposes the prayer of the applicant/complainant.
8. ' I have also perused the material placed on record as well as the police record with the assistance of the learned counsel for the parties.
9. ' The perusal of the record shows that respondents/accused Muhammad Hassan and Gulzar armed with guns along*ith respondent/accused Mir Muhammad killed the deceased Saifal in the open field in broad-daylight. After killing the Saifal, respondents/accused raising slogans barged into the house where they murdered one innocent lady Mst. Hakimzadi without any time or reason.
10. The F.I.R. Was promptly lodged by the complainant. The names of the respondents/accused and part played by them in the commission of offence has been mentioned in the F.I.R. The injuries on the person of deceased are corroborated by medical evidence. The police after registration of F.I.R.
11. Repaired to the Wardat and recovered firearm empties from the Wardat under Mashirnama. The version of the applicant/complainant is supported by P.Ws. Arbelo and Gulsher (eyewitnesses).
12. They have fully implicated the respondents/accused in their statements recorded during the course of investigation. On 25-3-1999 the respondents/accused Muhammad Hassan and Gulzar were arrested and firearms used in the commission of offence alongwith ammunition were recovered from their possession. The ocular evidence is corroborated by medical as well as circumstantial evidence. The life of the innocent lady Mst. Hakimzadi was snatched by the accused in order to bring the case within the ambit of Karo Kari but failed to substantiate it. The motive disclosed in the F.I.R. Is quite different from the stand taken by the accused. The motive disclosed in the F.I.R. Is that there was quarrel between the respondents/accused and deceased Saifal over monetary transaction. In order to avenge the insult, respondents/accused not only killed the deceased Saifal but brutally and callously killed an innocent lady Mst. Hakimzadi of her no fault.
13. The deceased Saifal and Mst. Hakimzadi were in no way connected with either parties, which could give the cause to accused for killing her on the pretext/notion of "Karo" "Kari". The deceased Saifal and deceased Mst. Hakimzadi were not even seen together by the respondents/accused. The scene of offence of the killing of the deceased Saifal is different from the scene of offence of killing the innocent lady Mst. Hakimzadi. The deceased Saifal was standing in the field where he was assassinated, whereas deceased Mst. Hakimzadi was in her house situated at a far-off distance from the place of Saifal's murder.
14. ' Contention of the learned counsel for the respondents/accused that accused Nabi Bux, Bahadur and Ali Nawaz nominated in the F.I.R. Were let off by the police therefore, the present respondents/accused are entitled to bail is misconceived. The names of accused Nabi Bux, Bahadur and Ali Nawaz have been placed by the police in Column 2 of the charge-sheet. They can be joined by the trial Court as accused at any stage of the trial. The finding of the trial Court and the argument of the learned counsel for the respondents/accused as well as learned State Counsel that it is a case of two theories, therefore, the accused are entitled to bail is misconceived and the same is not borne out from the record. The plain reading of the F.I.R. As well as statements of the prosecution witnesses prima facie shows that the case is not of two theories. The trial Court has erred in law by granting bail to the respondents/accused 1 to 3. In this context I am fortified by the decision of Honourable Supreme Court in the case of Ghulam Rasool and 3 others v. The State reported in PLJ 1980 SC 95. In the case of Ghulam Rasool and others (ibid) 18 persons were nominated as accused in the F.I.R. They allegedly armed with Balams and Dang, killed the deceased. The 13 accused out of 18 accused shown in the F.I.R. Were found innocent during investigation, and were let off by the police. The Honourable Supreme Court declined bail to remaining accused.
15. ' In the present case it was contended by the learned counsel for the applicant/complainant that he does not press the bail cancellation plea of respondent/accused Mir Muhammad on the ground that he was empty-handed and no overt act has been ascribed to him in the F.I.R.
16. I do not agree with the learned counsel for the applicant/complainant as well as the learned counsel for respondents/accused. The complicity of respondent/accused Mir Muhammad in the commission of offence has been prima facie made out. He joined hands with respondents/accused, who caused the murder of two deceased was in company of co-accused who caused fatal fire-arm injuries to deceased Saifal in the open field and also barged in the house of deceased Mst. Hakimzadi. It shows that accused Mir Muhammad was privy to the commission of offence and he committed the same with pre-concert and common intention.
17. ' In the case of Shah Zaman and 2 others v. The State and another reported in PLD 1994 SC 65, it was observed as under:-- ' "Section 34, P.P.C. Envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone."
18. The upshot of the above discussion is that the impugned order is perverse and illegal and is not in accordance with the principles laid down by the apex Court for the grant of bail. Consequently the same is hereby recalled. The to the respondents/accused 1 to 3 is hereby cancelled. The observations made hereinabove are of tentative in nature and may not be considered by the trial Court at the time of the final adjudication of the case.
19. Bail cancelled.