1. ' By this order I intend to dispose of two separate Criminal Bail Applications Nos.120 of 2002 filed on behalf of applicant Ali Nawaz Magsi and another being Criminal Bail Application No,157 of 2002 filed on behalf of applicant Muhammad Bux Magsi who was initially enlarged on interim pre-arrest bail vide order, dated 5-3-2002 which is fixed now for confirmation or otherwise. Both these applications are being dealt/ disposed of by a consolidated order.
2. ' The prosecution story as enunciated in the F.I.R. Is that on 6-4-2001 at 1-30 p.m. Complainant Sultan appeared at Police Station Shandadkot and lodged F.I.R. Alleging inter alia that on the eventful day they had to receive a telephonic call of their relative Muhammad Bux at the Otaq of Shamir Khan Magsi at Shandadkot and for that the complainant alongwith his brother Muhammad and Munib started from their village for coming to the Otaq of Shahmir Khan in Shandadkot where Muhammad Bux, Ali Nawaz, Abdul Sattar and Muhammad Ali all Magsi by Caste resident of near Engineers Bungalows, Shandadkot were already present. As they were present in the Otaq, Muhammad Bux, Ali Nawaz, Abdul Sattar and Muhammad Ali told Munib Ali, the brother of complainant, disclosing to the extent that, "let us sit under the shade of tree", as soon as they proceeded towards that place in the meanwhile complainant, his brother Muhammad and nephew Meer Hassan also proceeded towards that direction. At 1-00 p.m. When they reached near the lands of Meer Nadir Khan Magsi and their brother Muhib Ali Magsi was little ahead of them they found that accused Muhammad Bux Magsi threw him and disclosed that he is their 'Kam' and should not be spared. On this accused Abdul Sattar, Muhammad Ali and Ali Nawaz Magsi took out their pistols on which the brother of complainant Muhib Ali managed to escape but accused Abdul Sattar who was armed with country-made pistol fired which hit him on his back who fell down by raising cries. The complainant party raised Lalkara not to kill the person but again accused Muhammad Ali, Ali Nawaz fired from their country-made pistols at Muhib Ali which hit on the chest of deceased. Abdul Satar Magsi, the accused disclosed the complainant party that they should not come near them and in case, they will come, they will also receive the same. Accused Muhammad Bux shouted in big voice that he had killed Muhib as he was Karo with Zaibul and thereafter all the accused decamped from the scene of offence. Deceased Muhib was seen who had sustained fire- arm injuries on chest and back. He was bleeding and was dead. Leaving the above witnesses on the corpse, the complainant approached concerned police station where the F.I.R. Was registered as above. The investigation followed and in due course the applicant was sent up to stand trial in the Court of law.
3. ' I have heard learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that, as far, applicant Ali Nawaz Magsi is concerned, he was disclosed to be armed with country-made pistol and was alleged to have fired on the person of deceased Muhib Ali but according to the learned counsel during the course of investigation the case against the applicant was found false and his name was placed in Column No,2 of the charge-sheet. It has further been contended that prosecution during the course of investigation police had recorded the evidence of four defence witnesses namely Ameer Ali, Wazir Ali, Peeral and Mumtaz under section 162, Cr.P.C. Disclosing that D.Ws. Ameer Ali and Wazir Ali were present in Majlis situated in Shaikh Zaid Colony, Larkana which is 30 miles away from the place of occurrence. As far applicant Muhammad Bux is concerned, he was disclosed to be empty-handed and the role of instigation is assigned to him. According to the learned counsel, he argues that it was the case of ordinary or proverbial Lalkara but it was not the case of fatal Lalkara. Learned counsel has referred to the cases of 1980 SCMR 784, 2002 PCr.LJ 220, 1988 SCMR 1452, 1980 SCMR 190 and 1999 SCMR 421 in support of his contentions.
4. ' On the other hand Mr. Safdar Ali Bhutto learned counsel for complainant vehemently opposed the grant of bail to the applicants on the ground that, it is day time incident and the F.I.R. Has been lodged without loss of time. There are three eye-witnesses namely P.W. Muhammad, Meer Hassan and complainant Sultan who have witnessed the incident. It has also been contended that it is a case of strong motive against the applicant inasmuch as according to him the deceased was first of all pushed and thereafter declared as Karo. He has also argued that the learned counsel for the applicants has failed to substantiate his case on the point of mala fides. He has referred to an unbroken line of decisions namely case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82, Sarwar Sultan v. The State and another PLD 1994 SC 133, Muhammad Safdar and others v. The State 1983 SCMR 645, Muhib Razik v. Shah Muhammad and another 1983 SCMR 1130, Istikhar Ali v.
5. Aurangzeb and others 2000 MLD 1544, Wajid Ali v. Mumtaz Ali Khan and another, 2000 MLD 1172, Sakhawat Ali v. Khalid Mehmood and others PLD 1994 Lah. 377 and lastly Mureed v. The State 1987 Cr.LJ 1635.
6. ' On the other hand Mr. Gul Hassan Solangi, learned counsel appearing on behalf of the State while arguing states that according to F.I.R. Three persons namely Abdul Sattar, Muhammad Ali and Ali Nawaz were disclosed to be armed with country-made pistols and were alleged to have fired on the person of deceased Muhib Ali which hit hint, but the medical evidence disclosed two injuries on the person of deceased and the same is not in line with medical evidence. He also argues that as far applicant Muhammad Bux Magsi is concerned, according to F.I.R. He was empty-handed and a role of instigation has been assigned to him. Regarding Ali Nawaz it has been argued by the learned counsel for the State that he was disclosed to be armed with country-made pistol and was alleged to have fired on the person of deceased Muhib, but according to the learned counsel for the applicant during the course of, investigation, the case against applicant was found false and his name was placed in Column No,2 of the charge-sheet which has adversely reflected on the version of prosecution story. The prosecution in this regard had recorded the evidence of four defence witnesses namely Amir Ali, Wazir, Piral and Mumtaz under section 162, Cr.P.C. Disclosing that they were not present at the scene of offence, but were present in Majlis situated in Shaikh Zaid Colony, Larkana which is 30 miles far away from the place Of occurrence. It has lastly been contended by the learned counsel for the State that co-accused Abdul Sattar Magsi had confessed his guilt before a Civil Judge and F.C.M., Shandadkot on 4-5-2001 and in that eventuality he has opposed the grant of bail.
7. ' I have given my anxious consideration to the arguments of the respective parties and perused the record. It would be pertinent to reproduce the version of the co-accused Abdul Sattar Magsi in his judicial confession which is as under:-- "2/3 days prior to the incident Muhib Magsi was my `Karo' and he had escaped from my house. On 6-4-2001 I and my maternal-uncle were going from Shandadkot back to their house, when all of a sudden Muhib emerged in front of him. I shouted on him, on which he managed to escape. Since I was having a country-made pistol in my fold, I took it from my fold and fired at Muhib, which hit him on his back. On fire-arm , report Mumtaz, Piaral Bhatti came running to whom I raised a Lalkara on which they stopped there. Thereafter, I again fired two shots at Muhib on his chest and he died there and then and thereafter I myself and my maternal-uncle Muhammad Bux went away."
8. From the above confessional statement of co-accused Abdul Sattar Magsi it could be gathered that it has got only a corroborative value. Moreso, if the version of co-accused Abdul Sattar Magsi in confession is examined with other material on record it would be crystal clear that it is a case of two versions inasmuch as according to confession of co-accused Abdul Sattar Magsi, he fired three shots whereas the ocular version also disclosed three injuries which is not in line with medical evidence as the post-mortem notes disclosed two injuries. Moreso, the said Abdul Sattar in his judicial confession has absolved rest of the accused as mentioned in the F.I.R.
9. ' For the foregoing reasons, I am of the considered view that applicant Ali Nawaz Magsi has been able to make out a case for bail which is granted/provided, he furnishes surety in, the sum of Rs,2 lacs and P.R. Bond in the like amount to the satisfaction of trial Court.
10. ' By an impugned order, dated 5-3-2002 applicant Muhammad Bux was granted pre-arrest bail and the same is confirmed on same terms and conditions. Criminal Bail Applications bearing Nos.120 and 157 of 2002 stand disposed of.