1. These are three bail applications for consideration. First application is filed on behalf of Mir Allah Bux and the second application is filed on behalf of Mir Chutto, Mir Bachal Khan and Mir Abdullah.
2. The third application is filed on behalf of Amanullah A. S. I.
3. Incident is said to have taken place on 17-2-1977 at 9-30 p. m. In which fire-arms were used and one Faiz Muhammad received bullet injury on the neck, and died, Khuda Dino received one abrasion on the bead and Allah Bux sustained two lacerated wounds on the fingers. In respect of this incident two separate F. I. Rs. Were filed. F. I. R. Filed earlier in time is by Ghulam Rasool S. H. O.
4. Which was registered at Police Station, Tando Jam on 17-2-1977 at 11-45 p. m. The offences mentioned in this F. I. R. Are 307, 353, 148, 149, 235 and 224, P. P. C. It is stated in this F. I. R. That a police party consisting of Ghulam Rasool, S. H. O. And some other Police officials was raiding for making arrests in connection with the investigation of a Report No, 11/77 registered at Police Station Hoosri in which accused persons were Mir Rasool Bux Talpur, Mir Ali Ahmad Talpur, Mir Rafiq Ahmad alias Papoo, Mir Faiz Muhammad Talpur and three other persons. The Police party had proceeded in a Suzuki Wagon No. KAZ-559 which was being driven by Faqir Hussain. Police party was armed with service rifles and 10 bullets. Police party picked up on the way nek--mards, namely Bano Khan, Sahib Khan and Suleman. According to the version contained in F. I. R. No. 17/77 when the Police party in the Suzuki wagon came near Government School Chukhi, from where a track went to the village of Mir Faiz Muhammad Talpur, a car came from opposite side and it was stopped by the Police party. In the torch light it was seen that Mir Papoo was driving the car and Mir Faiz Muhammad was sitting beside him. On the rear side were Mir Allah Warayo, Mir Allah Bux and some other person. Mir Papoo had a stengun while other persons had revolvers. S. H. O. Warned them that except the unidentified person others were under arrest and asked them to come out from the car. On bearing this, Faiz Muhammad fire at the S. H. O. With revolver but he saved himself and in the meantime Mir Papoo started firing from the stengun indiscriminately. Others also fired. S. H. O.
5. And other Police officials fired back m self-defence, whereupon Mir Panpoo speeded his car and escaped with occupants in it. S. H. O. Examined Suzuki and found marks of fire-arm shots on its door and number plate. S. H. O. Went to the Police Station and filed the report at 11-45 p. m. The- distance between the place of occurrence and the Police Station is four miles.
6. Second report in respect of this incident was lodged by Mir Rafique alias Papoo on the following day at 7-30 a. m. At the same Police Station. According to the version contained in this report, it is stated by the complainant that his father Mir Rasool Bux Talpur and his other relatives were contesting the coming election and in that connection, he, Mir Faiz Muhammad, Driver Khuda Dino, Mir Gulzar and Allah Bux were returning at about 9-30 p.m. In Toyota Car No. KCD-2059 after can-- vassing. Complainant Mir Rafique Ahmad was driving the car and Mir Faiz Muhammad was sitting next to him on the front seat. It is stated in F. I. R. That when this party reached near otak of Mir Allah Bux Talpur in village Chukhi, they saw 2 ---25 persons standing including Mil Allah Bux Talpur and S .H. O. Hoosri Police Station and one A. S. I. There were 5/6 other police men with them. Mir Allah Bux Talpur and two other persons were armed with double barrel guns and others were armed with lathis and hatchets. Police officials were armed with rifles while Sub-inspector and A. S. I. Had revolvers. When the car of the complainant passed by the other party, mentioned above, opened fire at the car, in the result whereof Mir Faiz Muhammad Talpur was struck with a bullet. Other persons were also injured. Complainant after covering a little distance stopped the car and found Mir Faiz Muhammad Talpur having died of bullet injury on his neck. The rear glass of the car was broken with a bullet hole in it. Complainant drove the car straight to his residence and apprised his father Mir Rasool Bux Talpur and his uncle Mir Ali Ahmad Talpur who advised him to take the deceased and other injured persons to the hospital. Police came to the hospital and the report was lodged as stated above.
7. After the filing of these two reports, the investigation was conducted by Naseer Khan S. H. O. Tando Jam Police Station and consequently no action was taken on F. I. R. Filed by Mir Rafique Ahmad and during the Investigation of the F. I. R. Filed by the Police Officer, the accused persons named therein were proceeded against and obtained bail before arrest.
8. Since no action was taken on the second F. I. R. Which was filed by Mir Rafique Ahmad, due and cry was raised, applications were made to the higher authorities and the matter was agitated through newspapers. Ultimately after the change of the Government on 5th July. 1977 A.L.-G. (Crime), Sind ordered fresh investigation in respect of the F. I. R. Lodged by Mir Rafiq Ahmad Talpur on the application made by relatives of deceased Faiz Muhammad Talpur. The matter was investigated by Abdul Majeed, Inspector, Crime Branch, Hyderabad who submitted his report through D. S. P. To A. L-G. (Crime) Sind on 26-11-1977. (Photostat copy of this report is on the record). This report purports to uphold the view of the first Investigating Officer to the effect that no case is made out and no further action is warranted for the investigation of second F. I. R. Lodged by Mir Rafique Ahmad.
9. Subsequently on 6-10-1978 on the orders of higher authorities fresh investigation was ordered, in consequence of which investigation was taken up by P. I. A. And ultimately arrests were made of the accused persons involved in second F. I. R. Lodged by Mir Rafique Ahmad.
10. After action had been taken on this F. I. R. Mir Allah Bux Talpur applicant was arrested on 1-10-1978.
11. On 9-10-1978 Mir Chutto, Khan on 8-11-1978 Mir Abdullah and Mir Bachal and on 13-10-1973 A. S. I.
12. Amanullah were arrested. These applicants applied for bail before the learned First Additional Sessions Judge, Hyderabad and by a consoli--dated order dated 8-11-1978 their bail plea was rejected.
13. Mr. M. H. Shah appearing on behalf of applicant Mir Allah Bux Talpur has contended that applicant Mir Allah Bux Talpur although named by Mir Rafique Ahmad in his F. I. R. Is not named in the first report which was lodged by Ghulam Rasool S. H. O. Hence it can be argued that he was not present at the spot. His second contention is that in the F.I.R. Of Mir Rafique Ahmad, the part assigned to applicant Mir Allah 'Bux was that he vas armed with double barrel gun and no other particular overt act was attributed to him and the allegation in F.I.R. Is that firing was opened by those persons. It is mentioned in the report dared 26-11-1977 that 8 crime empties of -303 rifles were secured from the spot, which shows that no such crime empties were recovered to connect the double barrel gun of applicant Mir Allah Bux with the alleged firing. Post-mortem notes relating to deceased Mir Faiz Muhammad and medical reports of Khuda Dino and Allah Bux injured persons, indicate that only injury of Faiz Muhammad Talpur was caused by fire-arm and that was a bullet injury on the neck.
14. The learned counsel contained that medical evidence excluded the alleged use of double barrel gun in the firing in which Mir Faiz Muhammad lost his life, Thirdly, it is contended by the learned counsel that the two investigating agencies had found his client innocent and he has emphasised vigorously the second investigation I which was conducted by Abdul Majeed, Inspector, Crime Branch directly under the orders of A.I.-G. (Crime), Sind.
15. It is contended by Mr. Ghulam Haider Memon Advocate appearing for the applicants, Mir Chutto Khan, Mir Bachal Khan and Mir Abdullah that these three applicants are not even named in F.I.R.
16. Filed by Mir Rafique Ahmad. It is further contended by him that these three applicants are brothers of Mir Allah Bux and were previously known to complainant Mir Rafique Ahmad as such, had they been present at the spot they would have been specifically named in F. I. R. No description of these persons as unidentified accused persons was stated in that F. I. R. Identification test was not held.
17. No active part has been assigned to them. It is further contended by the learned counsel that at the most the case against these three applicants would attract application of section 149 which is a matter of further inquiry and on that basis also they, are entitled to bail. It is also contended by the learned counsel that the statements of the alleged eye-witnesses have been recorded after inordi--nate delay of about 16 months.
18. Mr. S. S. Akbar Advocate for the applicant Amanullah A. S. I. Has contended that he has not been specifically named in F. I. R. Filed by Mir Rafique Ahmad but it was only stated that there was one A.S.I. It is contended on behalf of this applicant that his name is mentioned in F.I.R. Which was filed by Ghulam Rasool S.H.O. And the version of firing in private defence is adhered to. The learned counsel further sub--mitted that applicant is entitled to bail on the ground that on two occasions previously the investigating agencies recommended no action on the F.I.R. Filed by Mir Rafique Ahmad as the version contained in the first report filed by Ghulam Rasool S. H. O. Was considered too be truthful.
19. Mr. Abdul Sattar Shaikh, Assistant A.-G. Has appeared on behalf of the State and has stoutly contended that the applicants are not entitled to bail and action was not taken on F. I. R. Filed by Mir Rafique Ahmad for political reasons hence after the change of Govern--ment the matter was thoroughly investigated by the F. I. A. Under the orders of the higher authorities after which action has been taken and material has been collected to be produced before the trial Court as incriminating evidence against the applicants. He has further stated that delay in the investigation in the peculiar circumstances of this case is understandable arid advantage and concession of this may not be given to the applicants who had successfully avoided the clutches of law under political protection. In any case the learned Assistant A.-G. Has stated that now the prosecution is in possession of incriminating evidence which is composed of ocular testimony of four eye- witnesses. Two of them are such witnesses whose presence at the spot would not be deniers by the accused persons for the reason that they are named as witnesses in the report filed by Ghulam Rasool S. H, O. The other two eye witnesses are such who are residents of the locality where occurrence took place. In addition to that there is medical evidence also.
20. I have given my careful consideration to the evidence available on the record and the peculiar circumstances in which the investigations were conducted. I have also heard at length the learned arguments advanced by the counsel on both sides. The only pivotal point in this case is as to what evidence is available with the prosecution which ',s proposed to be produced in the trial Court. I do not wish to make any positive comments on the evidence of this case this way on that way which might prejudice one party or the other before thetrial Court. So far the question of bail is concerned, the case It applicant Mir Allah Bux, Mir Chutto Khan, Mir Bachal Khan and Mir Abdullah stands on a different footing from that of police officials who have filed a counter case, which report was lodged earlier in time and in which a definite plea of private defence is taken. None of the applicants mentioned by me above are named in that F. I. R. There is no circumstantial evidence against them. No recoveries of incriminating articles have been made from them. Their complicity in the case would be determined by the ocular evidence which is yet to be adduced. In view of this state of evidence against them I admit them to bail in the sum of Rs. 20,000 with one surety and P. R. Each in like amount to the satisfaction of the trial Court.
21. Bail plea of applicant Amanullah A. S. I. Is rejected for the reason that he does not dispute his presence at the spot and has taken a plea of private defence 'which would be determined by the trial Court.
22. Osder accordingly