1. ' Present applicants are seeking bail in Crime No, 107 of 1999 registered with Police Station, Lakhi Ghulam Shah under sections 302, 337-H(ii), QDO, 147, 148, 149 and 114, P.P.C.
2. ' Brief facts of the prosecution case per F.I.R. Are that on 26-12-1999 at about 18-15 hours complainant Abdul Rasool son of Gul Muhammad Mahar, resident of Sommar village lodged his report at Police Station. Lakhi Ghulam Shah stating therein that they have got enmity with Allah Dino Mahar. Today at noon time accused Allah Dino and others jointly with an intention to commit their Qatl-i-Amd tired shots upon his son namely Abdul Nabi and caused him injuries, such case bearing Cr. No,106 of 1999, offence under sections 324, 147, 149 and 504, P.P.C. Was lodged at Police Station Lakhi Ghulam Shah. He then immediately took away his son Abdul Nabi to Taluka Hospital, Lakhi Ghulam Shah. The injured was being treated in hospital when his cousin Shahzado son of Allah Bux came there who asked that in house all the ladies are disturbed and let Abdul Nabi be taken away towards the house so that consolation be given to the ladies. He then took away his injured son Abdul Nabi alongwith his brother Muhammad Nawaz, cousin Shahzado for hospital towards his village. After showing injured to ladies and giving consolation to them, they all left their house for going towards Taluka Hospital, Lakhi Ghulam Shah. When at about 5-30 p.m. They reached near the rice mill, they saw accused Allandino son of Ghous Bux, Wahid Bux son of Abdul Hameed, Niaz Muhammad son of Sulleman duly armed with guns, Ghous Bux, Muhammad Saffar both sons of Allah Dino duly armed with rifles, all by caste Mahar, resident of village Soomar came running from their houses. Accused Niaz Muhammad abetted other accused to attack and committed murder of Abdul Nabi as he is saved and still alive. On the abetment of accused Niaz Muhammad, accused Allandino fired shot from his gun upon his son Abdul Nabi which hit him on his face. Accused Wahid Bux fired shot from his gun upon Abdul Nabi which hit him at his neck and he fell down while raising cries. They while raising cries of murder ran towards Rice Mill side on which accused fired shots upon them. On their cries and noise of firing his relatives Muhammad Ishaque son of Abdul Ghafoor, Ali Nawaz son of Haji Nabi Bux by caste Mahar, resident of village Soomar and other village peoples came running who also saw the accused. The accused then while firing shots made their escape good towards their houses. They then saw that Abdul Nabi received injuries on his nose, neck and his injuries were bleeding and he had expired. Then he while leaving witnesses upon dead body went towards Police Station where he lodged his report. He further stated' that on the abetment of accused Niaz Muhammad, accused Wahid Bux and Allah Dino fired gun shots from their guns upon his son Abdul Nabi and committed his Qatl-i-Amd and while accused Ghous Bux and Muhammad Saffar have fired shots upon them.
3. ' Learned counsel for the applicants has contended that the present applicants had tired on complainant party, but the firing was proved ineffective and no one was found injured. Fatal injuries are attributed to co-accused Allandino, Wahid Bux who are one of them is in custody while another is absconder. He has further contended that the old enmity is oozed out from the contents of the F.I.R. As it has been admitted by the complainant that there is an old enmity between the parties. Learned counsel for the applicants has further contended that previously the present applicants were implicated in F.I.R. No,106 of 1999 on the same charge and they are on bail and has stated at the bar which has not been controverted by the learned counsel for the complainant. Mr. Babar in support of his contention has placed reliance on 1999 SCM R 1320, 1996 SCM R 1125.
4. ' On the other hand Mr. Ubedullah Abro, Advocate for the complainant has argued the case with vehemence that old enmity is there and in Crime No,106 of 1999 the present applicants were refused bail and they are hostile towards the complainant party and they are party in the alleged offence and their case comes within the vicarious liability and are not entitled for the concession of bail and has placed reliance on the following authorities:-
(1) Babar Masih v. State (2000 M LD 1487).
(2) Qadar Mand v. Muhammad Amroze and others (1998 SCM R 496).
(3) Rana Muhammad Safdar v. Gulazar , Ali alias Papoo and another (1999 PCr.LJ 1).
(4) Siraj and another v. State (2000 PCr.LJ 1220).
(5) Qurban Ali v. Abdul Hayee and others (1996 PCr.L.I 1004).
(6) Hashim and others v. State (PU 1996 Cr.0 (Karachi) 983).
(7) Todo and another v. State (2001 PCr.LJ 649).
(8) Usman v. State (2001 PCr.LJ 359).
(9) Munawar v. State (1981 SCM R 1092).
(10) Haji Gulu Khan v. Gul Daraz Khan (1995 SCM R 1765).
(11) Khadim Hussain v. Sher Afzal (2000 PCr.LJ 974).
5. ' Mr. Mushtaq Ahmed Kourejo, Advocate for the State has not controverted the contentions raised by Mr. Yasin Khan Babar and has recorded his no objection to the grant of bail.
6. ' I have heard the learned counsel for the parties and have gone through the material available on the record and the impugned order.
7. ' In a case of Attaullah and others v. State reported in 1999 SCM R 1320-21 wherein the Honouable Supreme Court has granted bail to the accused and were alleged to have fired on the prosecution witnesses and they had not caused any injury to the deceased. In a case of Muhammad v. State reported in 1998 SCM R 454 the bail was granted to accused who had allegedly made an ineffective firing and no injury was attributed to him during the occurrence. In a case of Muhammad Sadiq v. State reported in 1996 SCM R 1654 the bail has been granted by the Honourble Supreme Court to the accused who were alleged to have kept on firing and raising Lalkara at the time of occurrence and they were armed with a pistol and a rifle, yet they did not cause any injury to the complainant party. The law cited by the learned counsel for the complainant is distinguishable from the facts of the present case. The role assigned to the present applicant is that they have fired on the complainant party and it has not been controverted by the learned counsel for the complainant that the complainant or any witness has sustained injury at the hands of the present applicants. Moreover, the deceased has sustained injury at the hands of Allandino and Wahid Bux who are not before this Court for grant of bail. The question of vicarious liability is to be thrashed out at the time of trial as reported in 1987 SCM R 1906. I am being fortified by the law cited by the learned counsel for the applicants reported supra. The learned counsel for the State has recorded his no objection. Apparently, the case of the present applicants is falling within the purview of section 497(2), Cr.P.0 with regard to the intention of killing to the complainant party and it can be thrashed out at the time of trial. Besides the enmity is admitted by the complainant in the F.I.R. And it is double-edged weapon which cuts the both ways.
8. 'In view of the above circumstances and the law cited by the learned counsel for the applicants, the present applicants are granted bail in the sum of Rs, two lacs each and P.R. Bond in the like amount to the satisfaction of trial Court.