' GHULAM NABI SOOMRO, J.--- The applicants seek their bail in a murder case (Crime No,55 of 2000 Police Station Ratodero), pending trial before the Court of learned Special Judge (S.T.A.), Larkana.
1. The prosecution case briefly stated is that Syed Akhtar Allam Shah, Advocate (deceased) was having enmity over land with the applicant party. On 18-5-2000 at 23-15 hours while the complainant Muhammad Hashim (Kamdar) and P. Ws. Siddique (Hari) and Bukshal (servant) were sitting together with Syed Akhtar Allam Shah and were chit chatting under the electric light, at that moment of time accused namely Daud, Muharram and the applicants namely Rajib, Lutuf and Rahib appeared there. It is alleged that accused Daud had a kalalshnikov rifle, Rajib and Lutuf both had rifles while Rahib had, a gun and Muharram had a T.T. Pistol. It is further alleged that the accused challenged and declared that they would not spare Akhtar Allam Shah as he has got a robbery case lodged at Police Station Ratodero against them and because they have got enmity over land. So saying accused Daud fired from his K.K. Rifle at Akhtar Allam Shah who on receipt of injury fell down crying. It is further alleged that accused Muharram fired from his T.T. Pistol at the complainant party which hit P.W. Bukhshal on his right foot while the applicants/accused also fired from their rifles and gun at the complainant party, but the complainant party saved itself from such attack. On the cries of the prosecution witnesses, all the accused went away firing towards west.
2. At the conclusion of the investigation, police challaned all the five accused named in the F.I.R.
And they are in custody. The present three applicants/accused moved the learned trial Court for bail, same having been refused, they have approached this Court for the same relief.
3. It was contended by Mr. Ali Nawaz Ghanghro, Advocate for the applicants that the applicants have been attributed a role of ineffective firing only and there is no other overt act alleged against them. He further contended that the arms like rifles have been foisted upon the applicants whereas the gun allegedly recovered from the applicant Rahib is his licensed gun. He urged that the applicants had no motive and they have been falsely implicated. Learned counsel in support of his contention has placed reliance upon the cases reported as:--
(1) 1996 SCM R 1654, (2) 1996 SCM R 1125, (3) 1998 SCM R 454 and (4) 1999 PCr.LJ 890.
4. On the other hand Mr. Lachmandas, Advocate appearing for the complainant has opposed the bail plea of the applicants stating that the names of the applicants appear in the F.I.R. They have been identified at the spot under the electric light available at the Wardat. He further contended that the deceased was an Advocate and it was a fresh case where charge had yet to be framed.
He placed reliance upon:--
(1) 2000 PCr.LJ 974, (2) 1994 M LD 895 and (3) PLD 1988 SC 621.
5. Mr. Altaf Hussain Surahio, learned State Counsel has also opposed the bail plea of the applicants and has argued on the same line of the complainant's counsel. He has further added that there is 161, Cr.P.C. Statement of the deceased which be treated as dying declaration of the deceased as further piece of evidence against the applicants.
6. We have given our anxious consideration to the submission made by the learned counsel for the parties and have also gone through the material placed on the record.
7. In the first case 1996 SCM R 1654 bail was allowed to the accused who had not caused any injury to any one in the incident, but allegedly kept on firing and raising Lalkara. In the second case 1996 SCM R 1125 three accused persons allegedly armed with deadly weapons like rifle, gun and hatchet were allowed bail on the ground that they had only caused simple blunt injuries to some of the P.
Ws. Using the wrong side of their weapons. It was held that in such circumstances whether they shared common intention with those who caused death of the deceased needed further inquiry. In the third case 1998 SCM R 454, bail was allowed to an accused who was not attributed any injury to the deceased during the incident as there was allegation of ineffective firing only against the accused; his case being one of further enquiry. In the last case 1999 PCr.LJ 890 bail was allowed by this Court to the accused who was only alleged to have fired in air. (This decision was upheld by the Honourable Supreme Court).
8. The case of Asmatullah Khan v. Baghi Khan and another PLD 1988 SC 621 relied upon by the learned counsel for the complainant cannot be made applicable in the present case as the case pertains to an offence falling under the Offences of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and is distinguishable.
' The learned counsel for the complainant has placed on record a copy of the application by the deceased to the S.D.M., Ratodero and investigation report of the D.S.P./S.D.P.O. To the S.S.P., Larkana in the instant case. Counsel having failed to show that the application addressed by the deceased to the S.D.M. Was in fact received in the office of the S.D.M. Or whether S.D.M. Had passed any order thereupon did not address us further on the aforesaid two documents.
10. The statement under section 161, Cr.P.C. Of the deceased would call for its determination as dying declaration at the time of trial. To go into it further and to explore the reason for such observation would amount to assessing the evidence deeply, which might prejudice the case of either party. The facts and circumstances of the prosecution case disclose that the applicants were armed at the time of incident and had fired ineffectively. Seen in the perspective of the enmity between the parties and viewed in the light of the aforesaid authorities of the Honourable Supreme Court we are of the considered view that the case against the applicants would require further enquiry into their guilt.
11. Having been persuaded by the above dicta, we allow bail to the applicants namely Rajib son of Khan Muhammad, Lutuf son of Muharram and Rahib son of Faiz Muhammad subject to their furnishing two solvent sureties each in the sum of Rs,2,00,000 (Two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.
12. It shall, however, be open for the trial Court to cancel the bail of the applicants whenever any tangible evidence is brought on record against the applicants.