2020 P Cr (PLP)

SHAMSUDDIN ABBASI, J.

Through instant bail application, applicant Nazeer seeks post arrest bail in crime No. 63 of 2015 registered at Police Station Sita Road district Dadu for offence under sections 302, 324, 337-H(2), 148, 149, P.P.C.. Earlier his bail plea was turned down by the learned Special Judge, Anti-Terrorism Court, Naushehro Feroze vide order dated 21.06.2018.

2. The facts leading to this bail application are that on 02.08.2015 at 8.30 a.m. in an unhappy episode deceased Gulab, Hameed Khan, Ranjhan and Rano Khan lost their lives while Shareef and Moar received injuries at the hands of 24 assailants, namely,

1. Madad,

2. Pehlwan,

3. Hussain,

4. Nazir son of Shabbir,

5. Zameer,

6. Naseer,

7. Rimzan,

8. Ghulam Hyder,

9. Qurban,

10. Muhammad Khan,

11. Ghulam Mustafa,

12. Sajjad,

13. Asad,

14. Nazir son of Waris (present applicant),

15. Zahid,

16. Ghulam Shabir,

17. Ghulam Ali,

18. Ghulam Sarwar,

19. Sher,

20. Rano,

21. Sajjan,

22. Rustam,

23. Javed and

24. Imam Bux within the jurisdiction of Police Station Sita Road and in this regard a case under Crime No.63 of 2015 was registered with concerned Police Station by first informant Sodho who stated that on the fateful day, above named, accused duly armed with lethal weapons, intercepted the complainant party who were watering the paddy crop at their lands and accused Pehlwan, Madad and Rano who were armed with KKs and G-3 rifle fired upon Gulab, accused Asad, Imam Bux, Qurban, Sajjad who were armed with KK, G-3, Repeater and KK respectively fired upon Hameed Khan, accused Shabeer, Muhammad Khan, Nazeer son of Shabeer, Hussain and Ramzan who were armed with G-3, KK gun, Repeater, KK and gun respectively fired upon Ranjhan, accused Sajjan armed with G-3 rifle fired upon brother of complainant Rano Khan who received multiple firearm injuries on vital and non-vital parts of their bodies, they fell down and ultimately died at the spot whereas accused Ghulam Mustafa caused firearm injuries to Muhammad Shareef on his right shoulder and head while accused Ghulam Hyder caused firearm injuries Moar on his right palm.

3. Learned counsel for the applicant submits that the applicant is innocent and has nothing to do with the alleged incident; that FIR is delayed by 39 hours and no such explanation has been furnished by the complainant although the police station is 5/6 Kilometers away from the place of incident; that no overt act is attributed to the present applicant except his mere presence; that the applicant/accused is in jail since the date of his arrest i.e. 09.8.2015 but the trial has not yet been completed; that co-accused named in the FIR have allegedly caused firearm injuries to the deceased persons and none of the P.Ws have alleged that applicant has caused any injury to the deceased persons or any of the P.Ws; that the applicant is suffering from mental disease which requires constant care and medication which is not available in jail and his further detention in jail will be harmful to the life of the applicant; He lastly submits that question of sharing common object and vicarious liability of the applicant will be determined by the trial Court after recording evidence. In support of his contentions, counsel has relied upon the case law reported in 2013 SCMR 49, 1999 SCMR 1320 and 1360 and 1999 SCMR 1654.

4. Mr. Faiz Muhammad Larik, learned counsel for complainant while opposing arguments of learned counsel for the applicant contended that applicant is nominated in FIR who came at the place of incident duly armed with deadly weapon; that the applicant has shared common intention with the principle accused; that in this incident four persons have lost their lives and two have received injuries; that delay in lodging of the FIR is well explained. He lastly prayed for dismissal of application. He has placed reliance on the case reported in 2000 PCr.LJ 236.

5. Mr. Aitbar Ali Bullo, learned DPG opposed the grant of bail to the applicant.

6. Heard learned counsel for the applicant, complainant as well as learned D.P.G for the State.

7. The perusal of record shows that complainant and eye-witnesses in FIR, as well as in their 161, Cr.P.C. statements have categorically stated that all accused including the applicant, named in the FIR, being armed with lethal weapons came at the place of incident, of them co-accused opened fires at the complainant party with the result that four persons from complainant party succumbed to the injuries on the spot and two received injuries. It was broad daylight incident. The applicant is not resident of the place where the unfortunate incident occurred. He had come with the co-accused from a distant village. Looking towards the peculiar facts and circumstances of the case, prima facie, the common intention of all accused was to kill as many persons as possible of the complainant party. The reckless firing robbed four lives and two sustained injuries. Merely, because the applicant did not cause the firearm injury is no ground for the grant of bail in the case in hand. It is not a rule of universal application that in each and every case where accused did not cause any firearm injury it was a case of no overt act and or that such a case automatically becomes one of further enquiry. The facts of each case are different and individual liability of each accused is to be determined in the light of the particular facts and circumstances of each case. During investigation crime weapon (K.K) was recovered from the possession of applicant. The offence with which the applicant is charged carries capital punishment. A deep appraisal or evaluation of evidence for the purpose of bail cannot be made and at this stage only tentative assessment of material in possession of prosecution is warranted by law.

8. The contention of the learned counsel that the applicant is suffering from mental disorder is no ground for grant of bail. While dismissing the bail application of applicant Nazeer the learned trial Court in the impugned order dated 21.06.2018 has observed as under:- "Learned counsel for the accused also moved an application for referring the accused to Sir COWSJEE Institute of Psychiatry. Report was called from Jail authorities and Jail doctor submitted his report that accused was referred to General Physician and Psychiatrist Consultant of LUMHS Jamshoro and Sir C. J. institute of Psychiatry Hyderabad and prescribed treatment by physician and psychiatrist is provided to accused." Perusal of the above clearly indicates that remaining of the applicant inside the jail will not be detrimental to his life. Certificate produced by learned counsel does not disclose the kind of disease and in such a position this ground taken by learned counsel finds no support in favour of the applicant.

9. There is another aspect of the case. The applicant was arrested on 09.8.2015 and the case was challaned on 21.08.2015. Charge was framed on 25.5.2016 and there-after the learned trial Court has examined two medical officers who conducted postmortems of the deceased persons, Tapedar and one Investigating Officer. Delay in trial is also on the part of the accused persons who have been seeking adjournments on one or the other pretext. In this respect, progress report was called from the learned trial Court. The learned trial Court in its report dated 18.9.2019 has stated as under:-

1. The case was fixed on 18.5.2019. On that date out of 15, three accused namely accused Pehlwan, Sajjan and Rano sought adjournment to engage a counsel. On their request the case was adjourned to 25.5.2019. On that date on the application of these three accused persons service of same advocate Mr. Niaz Muhammad Ghanghro of Hyderabad as that of other 13 pauper co-accused was provided to them. The same date an amended charge was framed against all the accused who are in trial and the case was fixed on 14.6.2019 for recording evidence of the prosecution witnesses. On that date on account of strike of the advocates on the call of Pakistan Bar Council the case was not proceeded.

2. On 4.7.2019 complainant Sodho and his one witness Mour were in attendance. Their evidence could not be recorded on the application of accused party due to absence of their advocate appointed on State expenses. On their request two weeks time till 16.7.2019 was granted to engage their private counsel to defend them in the case. On that day Mr. Faqir Rehmatullah Hisbani advocate filed vakalatnama for two accused namely Nazeer son of Waris, Nazeer son of Shabir and 10 others Mr. Hishani advocate was appointed to defend these 12 accused also on the State expenses. The defence counsel and complainant Sodho moved separate applications for adjournment.

3. On 25.7.2019 out of 14, one accused Ghulam Mustafa engaged another advocate Mr. Haji Khan Khoso. Evidence of complainant and witness Mour could not be recorded on the applications of both defence counsel for 6.8.2019.

4. On 6.8.2019 complainant Sodho put his appearance but his evidence could not be recorded as out of 14 accused, four co-accused namely Rustam, Jawaid, Sajjan and Rano engaged their advocate Messrs Zahid Mullah and Mr. Muhammad Mangrio respectively who moved adjournment applications.

5. On 26.8.2019 complainant Sodho and PW Mour were in attendance. On their application they left un-examined on their illness ground and on absence of all defence counsel who had observed strike on the call of Pakistan and Sindh Bar Councils and the case was adjourned to 11.9.2019.

6. Similarly on 11.9.2019 complainant and his two witnesses namely Mazhar and Muhammad Shareef were present. they left un-examined as all the defence counsel had remained absent of which the accused party moved adjournment applications and the case was adjourned to 18.9.2019.

7. This day i.e. on 18.9.2019 case was fixed for evidence. Complainant Sodho and his two witnesses Mazhar and Muhammad Shareef were in attendance and returned un-examined as out of four, two defence counsel Messrs Faqir Rehmatullah Hisbani for nine accused namely Nazir son of Waris and other and Mr. Haji Khan Khoso of co-accused Ghulam Mustafa were absent on the adjournment application of these ten co-accused and also on the request of complainant party whose private engaged counsel Mr. Taj Muhammad Qaimkhani was too absent. The case is fixed on 27.9.2019 for recording of prosecution witness. From the above it clearly indicates that the applicant has no interest in proceeding with the case and in order to protract the proceedings of this case of heinous nature involving four murders and injuries to the PWs. Accused have been seeking adjournments on one or the other pretext resulting non-examination of the material witnesses i.e. complainant and injured P.Ws, who have been attending the Court and returning un-examined since 2015. Act and omission on the part of accused, which resulted in delay in conclusion of the trial, would disentitle him to the concession of bail. Furthermore, the Honourable Supreme Court of Pakistan in the case of Rehmatullah v. The State and another (2011 SCMR 1332) has held as under:- "The courts should not grant or cancel bail when the trial is in progress and proper course for the courts in such a situation would be to direct the learned trial Court to conclude the trial of the case within a specific period. Reference may be made to Haji Mian Abdul Rafique v. Riaz ud Din and another (2008 SCMR 1206)."

10. The case law reported in 2013 SCMR 49, 1999 SCMR 1320 and 1360 and 1999 SCMR 1654 cited by learned counsel for the applicant is distinguishable from the facts and circumstances of the case in hand and is of no help and avail to the applicant. The applicant may, if so advised, repeat his bail application before the trial Court after material evidence is recorded.

11. In view of above discussion, we are of the considered view that there are reasonable grounds to believe that prima facie the applicant is guilty of the offence with which he is charged. He is, therefore, not entitled to bail. Consequently, his bail application is dismissed. However, speedy trial is right of the accused, therefore, the learned trial Court is directed to conclude the trial within three months. ADN/N-62/Sindh Bail refused.