1. ' Applicant Ali Shah son of Dinal Shah is facing trial in case under sections 302, 148, 149, 504 and 34, P.P.C. Arising out of F.I.R. No,150 of 1999 of Police Station Pano Akil.
2. ' The applicant/accused filed his bail plea before the trial Court, but the same was dismissed on 6- 6-2001 by the learned Additional Sessions Judge (Hudood) Sukkur. Hence this bail application has been filed.
3. ' The prosecution case as depicted by the complainant Sachal Shah is that there is dispute between Hakim Shah and Mushtaq Shah over domestic affairs and upon which Hakim Shah was annoyed with the complainant and he used to help complainant party and others. On the day of incident the complainant alongwith his son Israr Shah and relatives Akhtar Shah and Willayat Shah were standing at Tharechani Chowk Pano Akil, at about 4-30 p.m. The accused persons namely Raham Shah alias Budho Shah, Hakim Shah, Eidan Shah, Ali Shah (applicant), Usman Shah and Shah Nawaz Shah emerged at the place of Wardat and thereafter accused Hakim Shah and Raham Shah abused the complainant and instigated the others to murder Israr Shah on which accused Usman and Ali Shah (present applicant) caught hold Israr Shah from his arms while accused Shah Nawaz Shah inflicted his dagger blow at his chest who fell down and died on the spot. The complainant leaving behind the witnesses over the dead body went to police station and lodged the report. The police registered the F.I.R. Of the complainant and took up the investigation.
4. The police after due investigation submitted the challan in the Court having jurisdiction, wherein the applicant/accused was shown as absconding accused and thereafter he was arrested on 30- 5-2000 and before this time the applicant/accused was shown as a absconder by the trial Court by order, dated 15-11-1999. The applicant/accused filed his bail application in the trial Court which was dismissed, therefore, this Court has been approached for grant of bail.
5. ' It is contended by the learned counsel for the applicant in this case, specific part of infliction of dagger blow is attributed to accused Shah Nawaz Shah the applicant/accused is alleged to have held the deceased alongwith other co-accused by arms. It is further urged by the learned counsel that it is yet to be decided that if the applicant/accused caught hold the deceased alongwith the principal accused for infliction of dagger blow and it is yet to be determined about sharing the common intention with main accused. It is further urged by the learned counsel that the enmity is admitted in the F.I.R. Over land and domestic affairs. It is further argued by the learned counsel that complainant and prosecution witnesses are related inter se and inimical to accused and there is possibility of his false implication in the said F.I.R. The learned counsel has relied upon case of Mehmood Akhtar and 5 others v. Haji Nazir Ahmed and 4 others reported in 1995 SCM R 310, he has also relied upon the case of Shahid v. State reported in 1994 SCM R 393. The learned counsel also relied upon case of Muhammad Aslam alias Photo v. State reported in 2001 PCr.LJ 1349 and states that the question of participation of accused as alleged in the F.I.R. Needs further enquiry.
6. ' Mr. Ubedullah Malano, learned counsel for the complainant has vehemently opposed the grant of bail and states that since the applicant/ accused was declared as proclaimed offender by the trial Court and in pursuance of N.B.Ws. The applicant/accused was arrested on 30-5-2000 and it is further urged by the learned counsel that there is strong motive against the applicant/accused for commission of murder of deceased Israr Shah. The learned counsel for the complainant has relied upon the case of Suhrab and 3 others v. State reported. In 2001 PCr.LJ 60, case of Zahid Shah v.
7. State reported in 2001 PCr.LJ 134 and case of Aijaz Masih v. State 1999 PCr.LJ 343.
8. ' Mr. Mumtaz Ali Siddiqui, learned counsel for the State has also opposed the bail plea of the applicant/accused that there is enmity between the parties and the present applicant/accused had participated the main accused who stepped the dagger blow to the deceased and supports the order of the trial Court.
9. I have gone through the material placed on record and the case-law cited at the Bar by respective counsel for the parties. From the perusal of record it reveals that the parties were on inimical, terms with each other and such enmity is admitted in the F.I.R. The applicant/ accused was not armed with any weapon nor he caused any injury to the deceased. The F.I.R. Discloses that the applicant/accused alongwith the other co-accused Eidan Shah and Usman Shah caught hold Israr Shah by arms and co-accused Shah Nawaz Shah gave dagger blow and stated Israr Shah in the chest. The presence of applicant/accused at the site is yet to be established and also about the knowledge of co-accused Shah Nawaz Shah who has picked up dagger all of a sudden from the fold of his Shalwar.
10. ' In the similar circumstances the Honourable apex Court has enlarged the accused on bail in case of Mehmood Akhtar v. Haji Nazir Ahmed and others reported in 1995 SCM R 310. The relevant placitum cited in the said authority is referred to as under:- "The learned counsel for the petitioner (C.P. No,105 of 1994) has relied on the case Basharat Hussain v. Ghulam Hussain and others 1978 SCM R 357 wherein this Court refused to interfere with the order of High Court granting bail to accused persons in a case who had held the deceased to facilitate the murder by the co-accused. While refusing leave to appeal in the above case, this Court made the following observations- 'It is quite clear from the F.I.R., that respondent No,1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on head. Respondent No,1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail'."
11. ' In case of Shahid v. The State reported in 1994 SCM R 393 bail concession was extended to accused who caught hold of the deceased when his co-accused was inflicting dagger blow to the deceased. In the abovecited case the Honourable Supreme Court has held as follows:-- "It was contended by the learned counsel that the petitioner has been attributed the role of his having caught hold of the deceased when his co-accused was inflicting the dagger blows and similar role was attributed to Munsif their father for having given kicks and fist blows to the deceased. The latter having been extended the concession of bail, on the principle of consistency, petitioner is also entitled to the grant of bail. That in view of the statements of the prosecution witnesses during the investigation it is to be determined whether petitioner facilitated the commission of the offence for application of section 34 'makes out a case for further enquiry."
12. ' In a similar case this Court has also granted bail to applicant/ accused in case of Muhammad Aslam alias Photo v. The State reported in 2001 PCr.LJ 1349. In this case the Honourable High Court has also cited the other authorities in case of Basharat Hussain v. Ghulam Hussain reported in 1978 SCM R 357 and case of Muhammad Hussain v. The State reported in 1994 SCMR 261 and the above cited authorities have also been taken into consideration while granting hail concession.
13. As per prosecution case the main accused Shah Nawaz Shah had picked up dagger all of a sudden from the fold of Shalwar and inflicted blow on the chest of deceased Israr Shah. In view of the matter the applicability of sections 34, 148, 149 and 114, P.P.C. Is yet to be determined at the time of trial. The enmity is admitted between the parties prior to lodging of F.I.R. The question of participation of present applicant/accused in commission of offence needs further enquiry.
14. ' In view of the above dicta of the Honourable apex Court as well as High Court the applicant/accused is entitled for grant of bail. Resultantly, the bail is granted to the applicant/accused. Since the learned counsel for the complainant has stated that the applicant/accused his been absconding away after lodging of the F.I.R., therefore, the surety of stringent amount be furnished, as such the applicant/accused is required to furnish solvent surety in the sum of Rs,2,50,000 (Rupees two lac fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.