1988 P Cr (PLP)

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, cancellation of‑‑One of petitioners attributed a simple hatchet blow to deceased while others coming armed with Lathies yet causing no injuries to deceased‑‑Interference with order of Additional Sessions Judge granting bail to petitioners declined. Azizullah K. Shaikh for Applicant. A.Q. Halepota for Respondents. Abdul Ghafoor Mangi, A.A.‑G. for State. On 15‑9‑1984 at about 8‑00 a.m. the applicant lodged First Information Report at the Police Station Dadu wherein it has been alleged that in the morning his, father Muhammad Paryal while taking cattle from house to jungle came in the street when at about sun rise time the commotion occurred in the street. On commotion, he, Yousuf, Haroon, Ali Asghar and Muhammad son of Piyaro came out of their houses and went in the street. They found Dr. Muhammad Siddiq, Dr. Hashim and Muhammad all the three sons of Muhammad Ali and their sister's sons namely Akbar and Asghar. Muhammad Siddiq, Hashim and Akbar were armed with guns while Asghar was armed with hatchet and Muhammad and Nabi Bux were armed with Lathies. Dr. Siddiq abused his father and said that on many occasions they had asked him neither take your cattle through the street nor pass from there. Muhammad Ali their father also came there who was armed with Lathi. Muhammad Siddiq and others were instigated by their father not to spare them. Upon this accused Muhammad Siddiq, Muhammad Hashim and Akbar opened direct fire shots from their guns. The shot fired by Siddiq hit his father Muhammad Paryal who fell down. The fire opened by Dr. Hashim hit Yousuf. Akbar fired at Haroon. Accused Asghar inflicted sharp sided hatchet blow on the head of Ali Asghar. The police submitted interim challan on 1‑10‑1984 and requested for further time. Final challan was submitted on 17‑11‑1984. The Police did not challan Muhammad Hashim and Ali. Two bail applications were moved by the respondents Nos. 2 to 6 for the release on bail which were disposed of by common order by the learned Additional Sessions Judge. He granted bail to the respondents on the plea that case of Muhammad Hashim who was let of by police was identical to that of Muhammad Siddiq. The applicant being aggrieved by the above order has filed the present application. It is contended by the learned counsel for the applicant that the F.I.R. was lodged immediately without any delay and the learned Sessions Judge committed an error in relying upon the opinion of the Investigating Officer. An application was pending for decision for including Hashim and Ali as accused persons. The Presiding officer was under transfer and an application was moved by the counsel for the complainant for adjournment but that application was rejected. As there is no allegation made out against the Presiding Officer, I would not discuss this point. The order rejecting the application moved by the complainant shows that it was moved after the order was announced. However, coming to the merits of the case, specific role has been assigned to Muhammad Siddiq in the First Information Report and it has been stated that he was armed with gun and fired at parial who succumbed to the injuries. The medical report concerning deceased parial also supports the contention that fire arm was used. Similarly specific role was assigned to Akbar who fired at Haroon. The learned counsel for the respondents has stated that the case of Muhammad Siddiq is identical with that of Hashim and Hashim has not been challaned by the Police, therefore, he is entitled to bail. This reason was also prevailed with the learned Additional Sessions Judge and he has relied upon the authorities quoted in his order. The learned counsel for the private' respondent has also relied upon the same authority. The application impleading Hashim and another is still pending, but the fact remains that according to the investigation, respondents Muhammad Siddiq and Akber had used their guns. It is a case of tripple murder. Incident took place in the broad‑day light. The parties were known to each other. It is contended by the learned counsel for the private respondents that there is enmity but the enmity is a double edged weapon and this fact would be considered at the trial. At this pre‑emptory stage, I have to see what is the evidence collected by the investigating agency against the present respondents. The learned Assistant Advocate General has also not supported the order. He has stated that three empties were secured from the scene of incident and two witnesses namely Ali Asghar and Muhammad have been examined under section 164 and they have supported the prosecution case and implicated the present applicants. The gun was secured from Muhammad Akbar. The learned counsel for respondents has stated that case of Muhammad Siddiq is distinguishable from the case of Muhammad Akbar from whom gun was secured; and plea of alibi has been taken by Muhammad Siddiq who has produced certain affidavits in his favour that at the time of incident he was at the place of his duty. All these facts are not relevant at the, present stage. The specific roles have been assigned to the respondents Akbar and Muhammad Siddiq, which also confirms the prosecution case, A therefore, the are not entitled to bail. However, it is stated that Nebi Bux and Muhammad were armed with Lathies and Asghar was armed with hatchet, but there is no allegation that Nabi Bux and Muhammad had given any Lathi blow to any of the deceased. So also allegation against Asghar is that he caused hatchet blow, but injury is simple in nature and caused by hard and blunt substance. In such circumstances the application is allowed against the respondents Muhammad Siddiq son of Muhammad Ali and Akbar son of Allah Dino. The order of bail granted to them by the learned Additional Sessions Judge is recalled. They be arrested. The application against respondents Haji Nabi Bux, Muhammad and Asghar is rejected. Any observation on the merits of the case is not binding on the trial Court. S.G.D. Order accordingly.