1. ' Brief facts giving rise to the bail application are that on 7-1-2003, complainant Hamid Ali, deceased Roshan Ali, P.Ws Hidayatullah and Zulfiqar were going to the Court of Additional Sessions Court, Mehar on a Bus to attend murder case which was filed against the deceased and others. At about 7-00 a.m. The Bus reached at Khanpur stop. The applicant and four other accused persons armed with hatchets and Pistols arrived there. The applicant was allegedly armed with Pistol. They abused the deceased. The accused who were armed with hatchets allegedly caused injuries to the deceased who fell down on the ground. The part of aerial firing has been assigned to the applicant., Thereafter the applicant and the accused ran away. The motive of the incident was that the deceased was involved in a murder case of one Naban brother of accused Yar Muhammad.
2. Such F.I.R. Was lodged at Police Station, Khanpur Nathan Shah bearing Crime No.204/2003. A bail application was moved before the trial Court but the same was dismissed. Hence the present application.
3. ' Learned Advocate for the applicant has stated that there is recorded enmity between the parties, that the witnesses are interested hostile and inimical, that no overt act has been assigned to the applicant of causing injuries to the deceased though he was allegedly armed with Pistol which was more effective weapon than the hatchets. In support of his arguments he has relied upon the cases of Faraz Akram v. The State 1999 SCM R 1360, Yaroo v. The State 2004 SCM R 864, Abdul Rehman v. Javed 2002 SCM R 1415.
4. ' On the other hand the learned Advocate for complainant has stated that there was common intention between all the accused including the applicant to commit the murder of the deceased who was involved in the murder case of Naban brother of co-accused Yar Muhammad, that the applicant is cousin of co-accused Yar Muhammad; that the involvement of the applicant is established from the fact that he fired in the air in order to harass the complainant party. In his support he has relied upon the case of PLD 2002 Peshawar 2003 and Riaz Rashid v. The State 1.988 SCMR 281.
5. ' Learned State counsel has no objection to the grant of bail on the ground that only role of aerial firing has been assigned to the applicant though he was armed with Pistol and he could have caused Pistol injuries to the deceased which was more effective than the hatchet, that specific role of causing injuries has not been assigned to him and that there is recorded enmity between the parties.
6. I have given due consideration to the arguments and find that the role of the applicant is of aerial firing though he was armed with Pistol. The Pistol is lethal weapon which is more effective than the hatchet. If the applicant had common intention to commit the murder then he could have used the Pistol, thus his case is distinguishable from the case of remaining accused. However, this point can be thrashed out at the time of trial, after recording the evidence, where it is to see whether the applicant shared common intention with the co-accused or not. The rulings cited by the learned Advocate for the applicant are applicable in the facts and circumstances of the case particularly when there is recorded enmity between the parties and all the witnesses are interested, hostile and inimical to the applicant.
7. After considering the material available on the record, I am of the considered view that the applicant is entitled to the concession of bail, therefore bail is granted to the applicant in the sum of Rs.300,000 on furnishing solvent surety with P.R. Bond in the like amount to the satisfaction of the trial Court.