1989 PLP 2827 (MLD)

I have heard Mr. M.I. Memon learned counsel appearing for the applicants, Mr. Abdul Hafeez Lakho, learned Advocate-General, Sind appearing for the State, and have gone through the documents produced alongwith the bail application. It has been contended by Mr. M.I. Memon learned counsel appearing for the applicants, that the part assigned to the present applicants is similar to those who were granted bail by the High Court and by the learned trial Judge, and therefore, the applicants were also entitled to bail. Mr. Abdul Hafeez Lakho learned Advocate-General, Sind appearing for the State, has vehemently opposed the grant of bail to the applicants on the ground that the applicants were armed with fire-arms and they and the co -accused had attacked the village and had behaved in a cruel manner. They had fired at the innocent villagers indiscriminately in which their houses, including household articles were burnt, and 7 goats. One camel of P.W. Jan Muhammad Brohi was also killed due to firing. Thereafter the villagers took shelter in the mosque on which they were fired at in the mosque, due to which number of persons died and many of them were seriously injured. That this was a case where there was pre-planned attack on the entire village and, therefore, provisions of section 149, P.P.C. were attracted, and as such the applicants were not entitled to bail. He has relied upon 1979 S C M R 91 and 1981 S C M R

849. I have considered the contentions of the learned counsel. The bare reading of F.I.R. shows that the present applicants were armed with shot guns and they alongwith their co-accused which were about 100 in number had fired at the village with Rocket-Launchers, Kalashanikoves, guns and other fire-arms with the result that the houses of the villagers, their household articles, and cattle were burnt. Thereafter the villagers took shelter in the mosque but they were fired at even in the mosque due to which 14 persons died and 8 persons were injured. The F.I.R. further shows that property worth lacs of rupees was taken away by the accused. The manner in which they acted and fired at the village and the villagers was shocking. There is an allegation that all the accused had come together duly armed and fired at the village and villagers and therefore, it cannot be said that there was no overt act assigned to the present applicants. Even otherwise it was a case where there was a pre-planned attack on the helpless villagers, and therefore, prima facie provisions of section 149, P.P.C. were attracted. In the case of Nazar Muhammad v. The State and another P L D 1978 SC 236, it was observed by their Lordships of the Supreme Court that:-- "The Courts on the basis of the materials placed before them, such as F.I.R., statements recorded under section 161, Cr.P.C. are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made out." In the case of Muhammad Rashid v. The State 1979 S C M R 92:- "The petitioner was refused bail by High Court on the ground that the petitioner was a member of an unlawful assembly; he had accompanied his co-accused to the spot while armed with a stick and had made a murderous assault on the complainant while his co-accused committed murder of Manzoor Ahmed in prosecution of the common object of the said unlawful assembly and, therefore, provisions of section 149, P.P.C, were attracted', their Lordships of the Supreme Court agreed with the observations of the learned Judge of the High Court and petition was dismissed. As far as the order granting bail to co-accused Muhammad Hassan by my learned brother Nasir Aslam Zahid, J. was concerned, it will be appropriate to refer to a passage in the order which reads as under:- "In this case, there is no allegation against the applicant that he had fired or killed or injured any person. Mr. Roshan Ali Solangi has also submitted that there is a doubt about the identity of the applicant. In the. facts of this case, in my view a case for bail has been made out by the applicant." Looking to the allegations against the present applicants and the observations made in the case of Muhammad Hasan it cannot be said that the case of the present applicants was identical specially when the applicants are named in the F.I.R., they are shown to have been armed with shotguns and that it is alleged that they alongwith co-accused had fired at the village and the villagers, As far as co-accused Mithal and Wadho who were granted bail by the learner trial Judge, were concerned, the order rejecting present bail application show that an application for cancellation of their bail has been moved the complainant before the High Court. In this view of the matter, I am of the considered view that the applicants cannot entitled to bail and the application is accordingly dismissed. However, in view of the fact that the incident took place on 19-4-1987, I direct the learned trial Judge to proceed with the case expeditiously. In case some accused are absconding, their case may be separated from the case of those accused who are either in custody or on bail. I am conscious of the fact that there are number of accused and, therefore, some may not be able to appear in the Court and some of them may not be produced in Court for any reason, in such situation the Court will be at liberty to grant exemption for that date as envisaged by section 540-A, Cr.P.C. and proceed with the case. The applicants will be entitled to repeat their bail application after complainant and two injured eye-witnesses are examined. N.H.Q./G-120/K Order accordingly.