1. ' Allegations of prosecution as contained in the F.I.R. Are that complainant Khuda Bux, his brother Ghamshad Ali and other P.Ws. Were sitting in their Autaq when accused Mehrab armed with a gun, Lakhadino the applicant armed with a hatchet and two others namely Nabi Bux and Khuda Bux attacked deceased Eidan and out of them Mehrab fired from his gun which hit Eidan who fell down.
2. On a challenge given by complainant party the accused persons went away. Eidan died on the spot, F.I.R. Further shows that complainant party had some dispute with Khuda Bux and others over landed property and at the time of incident Khuda Bux and Nabi Bux had instigated the others not to spare Eidan.
3. ' Learned counsel for applicant at the outset submitted that he had taken the ground of statutory delay in the trial Court but the same has not been pressed here. However, on merits he submitted that the fatal shot is attributed to Mehrab alone and although Lakhadino is alleged to be armed with a hatchet but neither he has used the hatchet nor there is any hatchet injury on the person of deceased and practically no overt act is assigned to the applicant excepting his presence. He relied on 1996 SCM R 1654 (Muhammad Sadiq and another v. The State) and 1996 SCM R 1125 (Mumtaz Hussain and 5 others v. The State) in support of his contentions and submitted that the case of applicant calls for further inquiry.
4. ' Mr. Mukhtar Ahmed Khanzada, learned State Counsel vehemently opposed the bail plea on the ground that the name of applicant is mentioned in the F.I.R., he was accompanying the main accused with hatchet and the common intention is clearly made out from the circumstances of the case. He relied on PLD 1996 SC, 1023 (Ghulam Nabi v. The State).
5. Admittedly the fatal injuries are not attributed to the applicant. It is not even alleged that he hurled his hatchet or demonstrated any other action to show his intention to cause an injury to the deceased. In 196 SCMR 1654 the person who was armed with pistol but did not cause any injuries to the deceased was granted bail and similarly in 1996 SCM R 1125 the accused armed with deadly weapons had only caused blunt-sided injuries to the witnesses, as such, it was held that their guilt called for further inquiry. In the authority cited by learned State Counsel the distinguishing feature was that the accused was armed with a hatchet and had also not used it, but he was the only accused who had a motive to commit the offence. The motive in the instant case as against the present applicant is yet to be determined at the trial. No doubt in the cited case there is also a similarity that the accused had entered the house where they committed the offence but on the point of motive and constructive liability at least the case of present applicant calls for further inquiry.
6. ' In view of the above the application is allowed. The applicant be released on furnishing surety in the sum of Rs,3,00,000 (Rupees three lacs) and executing a P.R. Bond in the like amount to the satisfaction of the trial Court.