1. ' The circumstances leading to the re-hearing of this bail application are that before filing the present application for bail the applicants had earlier filed Criminal Bail Application N9. 748/77 which was dismissed by my learned brother, Mushtak Ali Kazi, J. By his order dated 22-8-1977.
2. ' Accordingly, when the present application came up for hearing before me on 25-10-1977, learned Assistant Advocate-General took the objection that since the previous application filed by the applicants had been dismissed on merits by another learned Single Judge of this Court and no fresh grounds for bail had been made out, this Court could not appropriately consider their application for bail on the same grounds. Mr. Mohd. Hayat Junejo, learned counsel for the applicants, conceded to this position and in the result the application was dismissed by me on 25- 10-1977. The applicants thereafter filed a petition for special leave to appeal in the Supreme Court who granted leave and converting into appeal allowed it on 7-1-1978 and set aside the order dated 25-10-1977 and directed re-hearing of the second bail application on the ground that the order passed by the learned Single Judge on the first bail application was cursory and based on some misunderstanding between the Court and the counsel and it required re-examination. Hence this re-hearing.
3. ' The applicants alongwith 3 others, namely, Rashidullah, Abdul Hameed_. And Imdadullah, are accused in a case under section 302/147/148/149, P. P. C. Pending in the Court of Session at Khairpur. The case set up against them in the F. I. R. Is that on 23-6-1977 the accused being variously armed went to the house of Kazi Abdullah (deceased) and called him out. Kazi Abdullah came out of the house whereafter accused Abdul Hamid and Rashidullah (not before this Court) fired at the deceased and killed him while applicants Zaibullah and Sibghatullah started firing their revolvers in the air and applicant Kifayatullah and Hamidullah brandished their hatchets in the air.
4. The motive for the crime is alleged to be a dispute between the accused and the deceased over management of the Madressah.
5. Mr. Muhammad Hayat Junejo, learned counsel for the applicants, contended that the applicants, who are closely related inter se and are the members of the same family, have been falsely implicated to rope in the entire family on account of enmity, as it made no sense that as many as seven persons should have to go armed to kill one old man.
6. ' Learned counsel next contended that, in any case, since the only part attributed to the applicants Sibghatullah and Zaibullah in the F. I. R. Is that they had fired their revolvers in the air while applicants Kifayatullah and Hamidullah had only brandished their hatchets in the air and they are not even alleged to have caused any injury to the deceased or to anyone else, their case was distinguishable from that of the co-accused Abdul Hamid and Rashidullah, who are said to have fired at the deceased and killed him, and, therefore, they were entitled to bail, as the prosecution has yet to establish its case against the applicants for being vicariously liable under section 149, P.
7. P. C. Particularly when there existed background of enmity between the parties as shown in the F. I.
8. R. Itself. In support, the learned counsel heavily relied upon the Supreme Court case reported as Mohammad Akbar v. State (I), and the order of the Supreme Court passed in Petition for Special Leave to Appeal No, K-2 of 1978 wherein their Lordships in one case upheld grant of bail and in another granted bail to those accused who had not been attributed the specific part of firing at or causing injuries to the deceased by distinguishing their case from the accused who had been assigned the specific role of firing at and killing the deceased.
9. ' Mr. Usman Ghani Rashid, learned Additional Advocate-General, opposed the application and contended that since it was alleged in the F. I. R. That the applicants and the 3 co-accused had come armed to the house of the deceased they were vicariously liable under section 149, P. P. C.
10. And therefore, they were not entitled to bail.
11. I would refrain from, examining in detail the rival contentions at this stage. Suffice it to say, that the only part attributed to the applicants in the F. I. R. Is that applicants Zaibullah and Sibghatullah had fired in the air while applicants Kifayatullah and Hamidullah had brandished their hatchets in the air and none of the applicants is alleged to have attempted to cause any injury to the deceased or any other person accompanying the deceased. The medical evidence also shows that the deceased received two injuries which have been specifically attributed to the accused Abdul Hamid and Rasheedullah whose case is not before this Court. There is also background of enmity between the parties as shown in the F. I. R. In these circumstances, for the purposes of bail, the case of the applicants is distinguishable from that of the accused who are alleged to have fired at and killed the deceased, and prosecution has yet to establish its case against the applicants for being vicariously liable for the alleged offence. Accordingly, keeping in view the observations of their Lordships of the Supreme Court made in the above-cited two cases, I find it a fit case for bail and order that the applicants be released on bail on their furnishing one surety each in the sum of Rs, 20,000 with a P. R. In the like amount to the satisfaction of the trial Court. {{FOOT NOTE}} (0 1978 SCMR7 {{FOOT NOTE}} ' It will, however, be open to the trial. Court to cancel the bail of the applicants at any stage of the trial if the evidence brought against the applicants on record warrants such a course.