1. ' The facts giving rise to the present bail application as disclosed in the F.I.R. Lodged on 29-11-2002 at 8-45 p.m. Are that the complainant cultivates the land and there was dispute between the complainant, Wazir Chandio and others over the hand of girl, and such F.I.R. Was lodged by Wazir and others against Abdul Karim alias Adloo son of the complainant and others bearing Crime No,202 of 2002 at police station under section 11/16 Offence of Zina (Enforcement of Hudood)
2. Ordinance, 1979. On the eventful day, the complainant and his son Abdul Karim had gone to Mehar Town for their work wherefrom, his son Abdul Karim alongwith his relatives Qadir Bux, Ali Hassan, Khamiso proceeded to their village in the Taxi. When they reached near their village, on Link Road, leading from Mangwani to Mehar, the car was got stopped and they alighted from it for going to their village. They saw, on the light of the car, accused persons namely Wazir, Aijaz, Imamuddin, Akbar, Shah Nawaz and Qasim who emerged from the water course. Out of them accused Aijaz, Imamuddin, Akbrar, Qasim and Shah Nawaz were armed with guns, whereas accused Wazir was empty-handed. Accused Wazir instigated his companions not to spare them. On this, accused Aijaz fired from l.Is gun at Abdul Karim son of the complainant which hit him and he fell down. All the remaining accused also fired from their guns at the complainant party, which were missed. On gun fire shots, villager came over there and on seeing them coming the accused persons went away. After the departure of the accused the complainant party went to injured and saw Abdul Karim was lying dead and blood was oozing from his injury. Thereafter, the complainant party took the dead body of deceased Abdul Karim to the police station on the same taxi where he lodged the F.I.R.
3. ' The applicants moved Sessions Court for the grant of their bail, but it was dismissed, hence the present application.
4. ' The learned Advocate for the applicants has stated that applicant Wazir was empty-handed and part of instigation has been assigned to him; that the other applicants were allegedly armed with guns and part of ineffective firing has been assigned to them, but no empty of fire-arm weapons was secured from the Wardat; that the taxi driver who was allegedly present at the Wardat has not been examined as a witness or cited as such and that the identification on head light of taxi is weakest type of evidence. In support of his contentions, he has relied upon the following case-law:- - ' Rajab v. State reported in 1995 PCr.LJ 366; Arshad v. State reported in 1999 PCr.LJ 611; Ali Shah v.
5. State reported in 2002 PCr.LJ 707; Abdul Rehman v. Javed reported in 2002 SCMR 1415; Amanat Ali v.
6. State reported in 1993 SCMR 1992 and Attaullah v. State reported in 1999 SCMR 1320.
7. ' The learned A.A.-G. Has conceded the above position and stated that the case requires further inquiry in view of the inherent defects in the case particularly non-examination of taxi driver, non- presence of empties of fire-arm weapons at the Wardat. He has no objection to the grant of bail.
8. ' The learned advocate for the complainant has opposed to the grant of bail on the ground that all the applicants shared common intention with main accused Ijaz who caused injuries to the deceased; that they have motive to commit the offence.
9. ' I have given due consideration to the arguments and find that there is enmity between the parties before this incident. The part of instigation has been assigned to applicant Wazir and part of ineffective firing has been assigned to the remaining applicants, but this fact has not supported or corroborated from the mashirnama of Wardat as no empties of fire-arm weapons were secured from the Wardat. In this connection, a reliance is placed upon a case of Faraz Akram v. State reported in 1999 SCMR page 1360 and at page 1362, it has been observed as under:-- "In support of this petition, it was contended that no overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do. The circumstances thus revealed that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr.P.C.".
10. ' Thus the question of vicarious liability will be examined at the time of trial.
11. ' After considering the material available on the record and case-law cited by the Advocate for the applicants, I am of the considered view that the applicants are entitled for the concession of bail.
12. ' Above are the reasons of my short order dated 24-2-2003, by which the application was allowed.