2018 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through this order I intend to dispose of captioned pre-arrest bail application filed by applicants Mehrullah, Roshan, both by caste Dahani and Ayaz Ali Rind in Crime No.15/2016 registered at Police Station Garhi Khairo, District Jacobabad, for offence under sections 302, 324, 395, 148, 149, P.P.C. Such request of the applicants was turned down by the learned Additional Sessions Judge-I, Jacobabad vide order dated 08.11.2016.

2. According to the case of prosecution, on 04.04.2016 complainant Zamir Hussain Soomro lodged the above FIR at Police Station Garhi Khairo, stating therein that he and his relatives, namely, Sher Khan, Shahzado, Zaid, Murad Ali, Ghulam Ali, Muhammad alias Qaloo, Amir Bux, Manzor, Gul Jan were residing in village Lal Bux Soomro since their forefathers. Accused Liaquat Ali Rind and others were threatening them to leave their village, else they would kill them. It is alleged that on 03.04.2016 complainant and his above-named relatives were sitting in the courtyard of his house, when at about 10:00 a.m., 26/27 culprits armed with weapons entered into the house, out of whom complainant party identified 16 persons to be Liaquat Ali, Wajid Ali alias Bairo, Nisar Ahmed, Qurban, Ashraf, Ghulam Murtaza, all armed with Kalashnikovs, Abdul Ghaffar, armed with repeater, Iqbal, Nasir, Abdul Aziz, all three armed with rifles, all by caste Rind, Amanullah, Abdul Hameed, Barkat, Lal Dino. Ali Nawaz, all duly armed with kalashnikovs and Mashooq, armed with rocket launcher, all six by caste Dahani and 10/12 unidentified persons, out of whom 5/6 were armed with guns and rest 5/6 were armed with rifles. It is further alleged that accused Liaquat Ali Rind gave 'hakal' and asked Murad Ali, relative of complainant, that despite their warning complainant party did not leave the village, therefore, they would be done to death; saying so, accused Liqauat Ali fired straight at Murad Ali with intention to kill him, hitting on his chest, who cried and fell down. The complainant then beseeched the accused persons on Holy Quran not to kill their men; in the meanwhile accused Wajid Ali alias Bario and Nisar Ahmed fired with their KKs at Ghulam Ali, hitting on left side of his back, who fell down by crying. Accused Qurban Ali, Ashraf and Ghulam Murtaza fired at Manzoor Ahmed, hitting him under the right thigh, who also cried and fell down. Thereafter, accused Iqbal and Nasir fired at Muhammad Khan alias Qaloo, hitting on left side of his neck and temporal region of head, who raised cry and fell down. Thereafter accused Abdul Aziz fired at Gul Jan, hitting him on left side of his chest, who too cried and fell down. Accused Amanullah fired at Amir Bux, hitting on his neck, who also cried and fell down, accused Barkat Ali fired upon Sher Khan, which hit him on his left shoulder, who cried and fell down, accused Lal Dino fired at Shahzado, hitting on his right foot and left hip and he fell down; accused Ali Nawaz made fired upon Zaid, hitting on his left thigh and shank, who also fell down. Thereafter accused persons in order to harass the complainant party fired rocket launcher over their house and rest of the accused also made aerial firing to rejoice the occasion, which hit to their own accomplices, namely, accused Mashooq Ali and Abdul Hameed Dahani and thereafter the unidentified accused persons are alleged to have entered the house of complainant and robbed motorcycle and licensed weapons, and then fled away towards eastern side. The complainant found Murad Ali, Ghulam Ali, Muhammad Khan alias Qaloo, Amir Bux, Manzoor, Gul Jan, having expired due to firearm injuries, while Shahzado, Sher Khan and Zaid were lying severely injured, blood was oozing from their wounds and accused persons, namely, Mashooq Ali and Abdul Hameed Dahani had also expired. Thereafter complainant party took the injured persons to police station and after obtaining letter took them to hospital for treatment with the help of co-villagers, wherefrom the injured persons were referred to Larkana hospital. The complainant then went to Police Station Garhi Khairo and lodged the FIR.

3. Learned counsel for the applicants argued that the applicants are innocent and have been falsely implicated in the present case with mala fide intention and ulterior motives; that all the prosecution witnesses are closely related to each other; therefore, they are interested witnesses; that there is one hour delay in lodging the FIR; that complainant has implicated all male members of one and same family; that earlier the learned Judge Anti-Terrorism Court, Shikarpur had decided the question of jurisdiction relating to trial of the case, vide his order dated 06.04.2016 and had returned the FIR of this case to the concerned police for presenting the same before the ordinary Court having jurisdiction; that the applicants are not nominated in the FIR and their names were subsequently introduced while submitting the challan; that no specific role has been attributed to the applicants; that question of sharing common intention and vicarious liability would be determined at the time of trial, therefore, per learned counsel the applicants are entitled to the concession of bail. He, therefore, prayed for confirmation of interim pre-arrest bail already granted to the applicants.

4. Conversely, Syed Sardar Ali Shah Rizvi, learned APG, vehemently opposed the bail application and argued that no doubt applicants Mehrullah, Roshan and Ayaz Ali are not named in the FIR, but the P. Ws in their respective statements recorded in terms of section 161, Cr.P.C. have implicated them with the commission of the crime; that the alleged offence is heinous one, wherein eight innocent persons were brutally killed, while three were seriously injured. The learned APG lastly contended that the applicants have no case for grant of extraordinary concession of pre-arrest bail, therefore, bail application may be rejected.

5. Heard learned Counsel for the applicants, learned APG for the State and perused the relevant record carefully with their assistance.

6. Perusal of record shows that the applicants were implicated by the prosecution witnesses in their statements recorded under section 161, Cr.P.C. wherein they have also been assigned the role of causing firearm injuries to deceased Murad Ali, Ghulam Ali, Muhammad Khan alias Qaloo, Amir Bux, Manzoor and Gul Jan and also to injured Zaid, Shahzado and Sher Khan in furtherance of their common object with co-accused named in the FIR, the medical evidence is in line with the ocular version; the eye-witnesses, namely, Zaid, Shahzado and Sher Khan have also implicated the present applicants, 34 empty bullets of 7.62 bore and 12 empty cartridges of .12-bore are also shown to have been secured from the place of occurrence, therefore, there is prima facie sufficient incriminating material against the applicants to connect them with the commission of alleged offence of murder of 6 persons. Furthermore, delay in lodging of FIR has been fully explained by the complainant. For grant of pre-arrest bail the applicants are required to satisfy the Court regarding their involvement on account of mala fide and ulterior motives, which under the law are to be specifically attributed. From reading of the grounds pressed in the bail application, although mala fides have been pleaded, but same are not attributed to the complainant or any of the prosecution witnesses, so also to the police.

7. So far delay in lodging of FIR is concerned, it has been held by the Honourable apex Court in the case of Haji Guloo Khan v. Gul Daraz Khan and others, reported in 1995 SCMR 1765 (relevant page 1773) that no doubt, the benefit arising from the delay in lodging the FIR goes to the accused, which could also be taken into consideration along with other circumstances, in the case at the stage of deciding the bail application, but delay in lodging the FIR, alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment.

8. The honourable Supreme Court of Pakistan in the case of Muhammad Arshad and another v. The State and another, reported in 1996 SCMR 74, has observed as under: "It is well settled that pre-arrest bail relief is granted only in those matters where it would appear that the registration of such cases was based on enmity/mala fide or where no offence was shown to have been committed on the very face of record. This is not the position in this case."

9. The honourable Supreme Court has also held in case of Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 Supreme Court 427, as under: "It had also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan's case supra) that no court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding mala fides were proved."

10. It is well-established principle of law that at the stage of bail and before recording of evidence in the trial court, only tentative assessment is to be made for the purpose of deciding bail application and it is not permissible to go into the details of evidence one way or other, because that might prejudice the case of one party or the other.

11. Moreover the honourable Supreme Court of Pakistan in the case titled as Shahzaman and 2 others v. The State, reported in PLD 1994 SC 65, has held as under: "In case when armed assailants attacked unarmed victim, omission to pin point in FIR as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under section 302, P.P.C. is concerned, except on question of sentence, if trial court believes evidence produced by the prosecution. Section 34, P.P.C. envisages that; if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In this case in FIR there is allegation that; all the three appellants were armed with lathies and Sarya and all of them inflicted injuries on the deceased everything depends on the intrinsic value of the evidence which is produced by the prosecution and it is for the trial court to evaluate that evidence and come to the conclusion according to law.

12. It has further been observed by the honourable Supreme Court of Pakistan in case titled as Shahzaman and 2 others v. The State reported in PLD 1994 SC 65 that; "At the stage of bail and before recording of evidence in the trial court, only tentative assessment is to be made for the purpose of deciding bail application and it is not permissible to go into details of evidence one way or other because that might prejudice the case of one party or others.

13. In view of what has been discussed above, I am of the considered view that the applicants, namely, Mehrullah, Roshan and Ayaz Ali, have failed to make out their case for the grant of pre-arrest bail. The bail application is, therefore, dismissed. Consequently order dated 16.12.2016 for grant of interim pre-arrest bail is hereby recalled. The applicants are directed to surrender themselves before the trial court.

14. The observations made hereinabove are tentative in nature having no effect whatsoever on the merits of the case and the trial Court shall proceed with the case independently and decide the same purely on merits. WA/M-86/Sindh Bail refused.