1977 P Cr (PLP)

"Today at 1‑30 day tune, a jeep bearing No. KAK‑7626 driven by Habibur Rehman arrived there. In the Jeep alongwith Habibur Rehman there were applicant Rustam Khan‑ and Zabta Khan sitting in the front and in. the same jeep, Zia Abbas, Tarique Aziz, Muhammad Akbar and Hussain Khan were sitting in the rear. They stopped the jeep, in my presence, in" front of Qadri Hotel of Mir Hussain. Mir Ajab also arrived on the scooter after their jeep. All of them got down, from the jeep and the scooter and Zia Abbas asked his companions, who were with him to take the advantage of the occasion, and finish our enemy. At that time; Abdul Hussain, and Fatal Qayyum were standing outside the hotel. On seeing them they (accused) had asked to attack their No sooner, did Zia Abbas finish saying, than Habibur Rehman fired which bit Noor Hassan on his eye. Then Rustam Klan fired which hit Abdul Hussain on his head. Then Zabta Khan fired which hit Fazal Qayyum on his hip. Thereafter all of them, who were armed with guns, rifles and fired Abdul 'Hussain, Noor Hassan and 'Fazal Qayyum in order to kill them. Noor Hassan died at the spot. I have left Abdul Hussain and Fazal Qayyum in the injured condition. Muhammad Nawaz, Muneer and many other persons were present‑at the spot, who had witnessed the occurrence. My complaint is against the aforementioned persons. Noor Hussain Abdul Hussain and Fazal Qayyum who are my relations, were injured in order to murder diem by firing, Habibur Rehman and Rustam Khan are our relatives, who have an old enmity with us. Investigation may be made. Whatever is written down have been read over to me and is admitted to be correct."

2. Three of the accused in the case, namely, Mir Ajab Khan, Zia Abbas and Tariq Saeed were initially released on bail by the Sessions Court and against this order, the complainant Bakhtiar‑Khan approached this Court for cancellation of bail‑but this application was dismissed by my Lord the Chief Justice by his order dated 20th May 1975. The applicants herein also applied for bail in the Court of sessions but their applications ''were rejected by orders dated 16‑11-1974 and 5-12‑

197. The learned Sessions Judge in relation to applicant Rustam observed that it was alleged against him that he had fired upon deceased Abdul Hussain and that the F. I. R. also mentions that he had old enmity with the complainant party. In relation to applicant Zabta khan the learned Sessions Judge observed that he was alleged to have fired a shot Which hit Fatal Qayyum and his case was sought tone distinguish ed from the co‑accused who had been `enlarged on bail as they were neither armed with any weapon nor was any over act attributed to them On 15‑10‑1975, the remaining co‑accused Hussain Khan and Muhammad Akbar were released on bail by the leaned Additional Sessions Judge, Karachi, the cancellation of which was sought by the complainant Bakhtiar Khan by an application made to this Court. This application along with the Bail application filed by applicant' Rustam Khan, were by an order dated 1‑3‑1976 dismissed by my Lord the Chief Justice. By the sane order my Lord the Chief Justice was pleased to direct that the Judge dealing with the case shall take special care that the trial commences at an early date and is completed without delay, he shall fix the hearing from day to day if possible and in case the trial is prolonged for unreasonably long period it will be open for the accused to repeat the request for bait.

3. The present bail application recites that the bail application of Rustam disposed of by my Lord the Chief Justice by order dated 1‑3‑1976, appears not to have been pressed on his behalf and he has accordingly filed the present application.

4. The main argument of Mr. Muhammad Hayat Junejo, the learned counsel for the applicant Rustam Khan was that the overt act attributed to applicant Rustam Khan in the F. I. R. was that he fired upon Abdul Hussain on his head while the post‑mortem report of the Police Surgeon showed that there was no wound of entry or exit of a projectile noted on the body anywhere and the cause of Abdul Hussain's death was attributed to intracranial haemorrhage and shock as the result of injuries sustained due to forceful and violent impact with a hard heavy blunt object like a lathi, danda, iron‑bar or any other similar weapon of assault, and the argument, therefore, was that the complainant belied the more reliable medical evidence. To this limited extent the learned counsel appears to be right but I must point out that the medical report of the examination of Abdul Hussain before his death shows three injuries as follows: (1) Lacerated wound 3/4" x " x forehead right side, no charring of the skin around, no tattoring suspected underlying bone. Could be wound of entry. (2) Lacerated wound 1 " x " margins overted, susptd underlying bone. Could be wound of exit. (3) Lacerated wound 2" x " x SD(L) side head. It is, therefore, pre mature to put implicit reliance on post‑mortem report, which also mentions lacerated wounds of a depth, which do not altogether rule out injury by fire arms. Additionally, the learned counsel is ignoring the allegation that from the vardat were recovered empties, which according to the Ballistic Expert, matched the licensed pistol of applicant Rustam. Assuming, therefore, for arguments sake that the pistol injury on deceased Abdul Hussain had not been caused by the applicant Rustam Khan there is prima facie evidence that he had used his licensed pistol which would make him liable for an offence under section 307, P. P. C. which is punishable with life imprisonment. There is still another aspect of the matter to which my attention was drawn by Mr. Abdul Hafeez Lakho, the learned Additional Advocate- General and that was the oral testimony of as many as five eye witnesses, namely, Muneer, Ghulam Muhammad, Fazal Qadir, Abdul Kadir, Abdul Malik and Muhammad Nawaz, who have all alleged that after firing, the accused started beating the injured with butts of guns, pistol and revolvers which injury is prima facie corroborated by the post‑mortem report. The incident it may be noted occurred at 13‑30 hours and was promptly reported at 13‑45 hours and it is possible that the complainant who appears to have rushed to the police station from the scene of offence may not have had the occasion to see the injury caused by the applicant Rustam Khan by the butt end of his pistol following the firing.

5. As regards the applicant Zabta Khan the allegation against him is that he fired upon Fazal Qayum, which bit him on his hip. Nothing in substance was said by the learned counsel on this behalf as to the demerits of the allegations.

6. Finally, in support of the bail plea for both the applicants. Mr. Muhammad Hayat Junejo referred to the fact that notwithstanding the order made by my Lord the Chief Justice on 1‑3‑1976 no further progress has been made in this case and in the circumstances he was entitled to repeat his, request for bail. My Lord the Chief Justice had given this liberty if the trial was prolonged for unreasonably long period which is not at least presently the case for only four months have passed since the order dated 1‑3‑1976 was made. What is more important however is that I have before me no material to justify the conclusion that no progress has been made in this case by reason of any act or omission on the part of the prosecution or the Court. If the applicants had repeated their bail application before the trial Court on this ground I would have had the benefit of the views of that Court but in its absence, I am, in the circumstances of the present case, unable to grant bail on the ground only that so far no progress of the case has been made.

7. The result, therefore, is that this application is dismissed. Application dismissed.