1. ' I intend to dispose of above Cr. Bail Applications by common order as the applicants are seeking pre-arrest bail in Crime No.44 of 2004 for an offence punishable under sections 302/147/148/149, P.P.C. Read with section 337-H(ii) P.P.C. Registered at Police Station Daulatpur.
2. ' The applicants namely Syed Maqbool Hussain Shah, Syed Maqsood Ali Shha, Syed Safdar Ali Shah Jehania alias Sikander Ali along with Nimaz Din, Nadeem Akhtar and Ali Nawaz Shah alias Masroor Shah filed Criminal Bail Application No.363 of 2004 in the Court of learned Sessions Judge, Nawabshah, the said bail application was dismissed by learned Incharge Sessions Judge, Nawabshah vide order, dated 30-12-2004.
3. ' The applicants (Syed Maqbool Hussain Shah, Syed Maqsood Ali and Syed Safdar Ali Shah Jehania) have filed a separate Bail Application bearing No.39 of 2005. The applicant Nimaz Din and others challenged the impugned order, dated 30-12-2004 and presented bail application in the High Court of Sindh Circuit Court Hyderbad. The said bail application was transferred to this Court by Honourable Chief Justice vide order, dated 13-1-2005, therefore, both bail applications have been placed before me for hearing. The applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah and Syed Safdar Ali Shah Jehania sought interim pre-arrest bail which was granted to them on 18- 1-2005 subject to furnish surety in the sum of Rs.1,00,000 each and P.R. Bond in the like amount to the satisfaction of Nazir of this Court. The applications furnished surety before Nazir of this Court which was accepted on 18-1-2005.
4. ' The applicants Nimaz Din and others also sought interim pre-arrest bail from this Court vide order, dated 14-2-2005 and furnished surety, which was accepted on 14-2-2005. The applicants Nimaz Din, Syed Maqbool Hussain Shah, Syed Maqsood Ali and Syed Safdar Ali Shah Jehania alias Sikandar Ali sought protective bail in the above offence from the High Court of Balochistan Bench at Sibi vide order, dated 21-12-2004 which was valid till 5-1-2005 whereas co-accused Nadeem Akhtar sought protective bail from High Court of Sindh Circuit Court Hyderabad on 27-12-2004.
5. ' It was contended by learned counsel that the applicants namely Nimaz Din, Syed Maqbool Hussain Shah, Syed Maqsood Ali and Syed Safdar Ali Shah Jehania alias Sikandar Ali on the day of incident were in custody of Levies Police at Gandawah in arm case and they have been involved malafidely in this case which was registered on 5-12-2004 at Police Station Daulatpur but the incident had occurred on 4-12-2004, the applicant Nadeem Akhtar was not present at the time and place of incident and he was faraway from the place of incident, the witnesses namely Ghulam Mustafa Korai, Abdul Sattar Jamali, Mir Muhammad Sial and Jamshed Wali alias Jamshed Ali have filed their affidavits in respect of plea of alibi. It is further urged that the name of applicant Ali Nawaz Shah alias Masroor Shah neither appears in the F.I.R. Nor his feature are given and he is ropped in this case after deliberation and consultation by recording 161, Cr.P.C. Statement of the witnesses.
6. ' Mr. A.Q. Halepota learned counsel has contended that the applicant/accused are innocents and they have been falsely ropped in this case due to enmity and on account of dispute between two groups on the management of Sufi Dargha Shah Jehania, there is also civil litigation between applicants and Syed Safdar Hussain Shah and others. At the time of incident the applicants were in custody of Levies police at Gandawah of Balochistan Province, and unlicensed T.T. Pistol of 30 bores was recovered from the dash board of Suzuki car bearing No.3410 Karachi. The applicants have filed certified true copy of record of Naib Tehsildar Gandawah District Jhall Magsi containing the detail of arrest and release of them in support of their plea. It is further contended that as per Notification No. 50(Judl) 4(5)/94/volv1456-93 issued by order of Governor of Balochistan all Levies Thanas headquartered at Tehsil/Sub Tehsil were declared to be Police Stations for their respective areas of the concerned Tehsildars/Naib Tehsildars has acted as officer of such police station within the limits of their territorial jurisdictions. The entries recorded by Levies Police Station Gandawah duly signed by Naib Tehsildar at Gandawah show that the applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Hussain Shah, Syed Safdar Ali Shah Jehania along with Nimaz Din were taken into custody by Naib Tehsildar, who was on patrolling duty and seized Suzuki Khyber Car No.3410 in which they were travelling when they reached Levies Chowki, Nousher Tehsil Gandawah on 4-12- 2004 at 10-00 pm. They were taken into custody and T.T. Pistol was also seized from car. The applicants along with accused Nimaz Din were released, as owner of car namely Syed Arbab Shah appeared before Naib Tehsildar on the next date viz. 5-12-2004 at 8-00 a.m. And produced original licence of Pistol bearing No.617/ SDM issued on 15-7-1999 by SDM. The Naib Tehsildar Investigation Officer Gandawah recorded the statement of applicants, the place of incident is about 400 k.m.
7. Faraway from the Levies Chowki at Nousher in Tehsil Gandawah, District Jhall Magsi in Balochistan.
8. The applicants and co-accused Nimaz Din raised plea of alibi at the earlier stage, it is a documentary evidence and as such there is no reason to doubt authenticity of said evidence, the concerned Naib Tehsildar also recorded statement of Syed Arbab Ali Shah and issued verification certificate regarding detention and release of applicants. The applicants voluntarily appeared before Investigating Officer of Police station Daulatpur, where F.I.R. Was lodged against them. The relevant Investigating Officer recorded 161, Cr.P.C. Statement, where they took the plea of alibi and stated that they were not present at the time and place of incident and they were in fact detained at Levies post at Noushero, Tehsil Gandawah on 4-12-2004 at 10.00 p.m. And released on 5-12-2004 at 8-00 a.m. After production of original licence of T.T. Pistol by Syed Arbab Ali Shah. The Investigating Officer refused to receive the certified true copies of entries made by Naib Tehsildar/Officer Incharge of Levies Police Station, Gandawah regarding their detention and release. Applicant Syed Maqsood Ali Shah sent telegrams to various authorities. One of the follower Naeem Akhtar moved an application in the Court of Sessions Judge, Nawabshah under section 22- A of Cr.P.C. For seeking direction to the relevant authorities for acceptance of documents of their detention. It is contended that in view of the application filed in the Court of Sessions Judge, Nawabshah vide order, dated 7-1-2005 direction was issued to Regional Police Officer for further proceedings but no compliance was made regarding the plea of applicants.
9. ' It is further contended that the applicants are respectable Zamindars and educated person. The applicants Syed Maqsood Hussain Shah is Sajjadah Nashin of Sufi Dargah of Makhdoom Syed Hassan Shah Jehania since last 26 years, Safdar Ali Shah alias Sikandar Ali Shah is his brother whereas applicant Maqbool Hussain Shah is cousin of Syed Maqsood Ali Shah. There is a dispute over Sajjada Nashini of said Dargah and valuable plot of land situated near the Dargah Shah Jehania. The Civil litigation is also pending in the Court of Second Senior Civil Judge, Nawabshah being Suit No.191 of 2004 and 206 of 2004. The applicants have been falsely involved in this case and they will be disrespected and humiliated so that they may suffer irreparable loss/injury to their dignity and respect and reputation. There is delay of 16 hours of lodging the F.I.R., although the distance of police station is 8 k.m., P.W. Mehar Ali and Pias Ali are relatives of the complainant party, it is further urged on behalf of applicants that learned Incharge Sessions Judge while deciding bail application has not discussed the plea of alibi of applicants/accused in the impugned order. The plea of alibi was raised liy applicants Syed Maqbool Hussain Shah and others and co-accused Nimaz Din and the same plea was not investigated by the prosecution, as per recording entries/ evidence their detention is not bogus, as the same plea was raised in the bail application while seeking protective bail from High Court of Balochistan Bench at Sibi and the same plea was raised before the learned Sessions Judge which has been mentioned' in the impugned order at page 75 but the same plea was not adverted by learned Incharge Sessions Judge in the impugned order.
10. ' Mr. A.Q. Halepota, learned counsel for the applicants in support of his arguments has relied upon the following case laws:--
(1) 1986 PCr.LJ 460 Manzoor and another v. The State (2) 1981 SCMR 860 Ali Sardar v. Gul Moeen and another (3) 1986 PCr.LJ 117 Sakhi Sultan v. The State.
11. ' Mr. Muhammad Sharif Sial, advocate in Cr. Bail No.97 of 2005 has adopted the arguments of Mr. A.Q. Halepota advocate in respect of bail plea of applicant Nimaz Din. It is further urged that the applicants Nadeem Akhtar and Ali Nawaz Shah have been falsely involved in this case due to enmity and annoyance between two groups on the management of Dargah Shah Jehania. The Civil litigation is also pending before the Court of law. It is further argued that the applicant No.2 (Nadeeem Akhtar) was not available in vicinity as he was far away from the place of incident as per affidavits filed by Mustafa Korai, Mir 'Muhammad Siyal, Abdul Sattar and Jamshed Wali. The name of applicant Ali Nawaz Shah alias Masroor Shah does not appear in the F.I.R. Nor his feature has been disclosed. He has been involved after deliberation and consultation as per statement recorded by prosecution later on. As per F.I.R. It is alleged that present applicants made ineffective firing and no fatal shot is attributed to them. It is further urged that there is mala fide on the part of prosecution witnesses and there is admission that the enmity was between the two groups and complainant party has involved applicants to cause injury to their dignity, respect and reputation.
12. However statement of P.W. Mehar Ali and Pias Ali were recorded on 20-12-2004 whereas the further statements of complainant was recorded on 21-1-2005. Mr. Sial in support of his arguments has cited the following authorities:--
(1) 1966 PLD 589 Sadiq Ali v. The State (2) PLD 2000 Karachi 6 Riaz Ahmed Goharshahi v. The State
(3) PLD 1989 SC 347 Meeran Bux v. The State (4) 1990 PCr.LJ 323 Ghulam Murtaza Qureshi v. The State (5) 1992 MLD 880 Chowhdry Muhammad Aslam v. The State, (6) 1999 PCr.LJ 1323 Mst. Riaz Bibi v. Sardar and 3 others (7) 2000 PCr.LJ 994 Rafique Ahmed v. The State.
13. ' Mr. Khawaja Naveed Ahmed advocate for the complainant has contended that the plea of alibi was managed by the applicants which was not considered by the Investigating Officer.
14. Investigating Officer Jhall Magsi has issued certificate, dated 27-1-2005 and denied the detention and release of applicants namely Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah and Syed Safdar Ali Shah alias Sikandar Ali Shah and Nimaz Din. He has also placed counter-affidavit of complainant Mashooq Ali along with Photostat copy of certificate issued by Prosecuting Officer/Investigation Officer, District Jhall Magsi at Gandawah, dated 30 December, 2004. It is stated in the certificate that applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safdar Ali alias Sikandar Shah and Nimaz Din were neither detained nor remained in the custody of Levies Police from 1st December, 2004 till 30th Dt...::-_fber, 2004. The complainant had also filed an application in the High Court of Balochistan Bench at Sibi for initiating inquiry against Muhammad Moosa Naib Tehsildar at Gandawah. The High Court of Balochistan Bench of Sibi had issued direction to Commandant Levies to conduct inquiry against Naib Tehsildar, hence Misc. Application was disposed of. The applicants/accused have committed heinous offence, Syed. Maqsood Ali Shah and Syed Maqbool Hussain Shah armed with K.K. Whereas Sikandar Ali alias Aftab Shah armed with rifle and 7/8 persons also emerged from the sugarcanes crop who were identified Mir Muhammad alias Mir Lafik, Nimaz Din alias Nimazi Bago, Nadeem Panjabi out of them Mir Muhammad and Nadeem were having rifles and Nimaz Din had Kalashnikov. The accused persons encircled them whereas Maqsood Shah told to complainant party that their Murshid Hassan Shah and Asadulah Shah have been murdered by his follower. Therefore they will not spare them and saying so Maqsood Shah opened the fire at Raza Muhammad with his K.K. Who received shot and fell down, Maqbool Shah opened fire at Sadiq Ali, brother of complainant, which hit him and fell down then application Sikendar Shah opened fire from his rifle which hit his cousin who also fell down. It is further stated that Mir Muhammad, Nimaz Din, Nadeem and other unidentified culprits has fired on complainant party. Raza Muhammad, Sadiq Ali and Abdul Razzak had expired after sustaining fire-arm injuries and then they approached Syed Hassan Shah Jehania and on his direction after removing the dead bodies to hospital proceeded to police station where F.I.R. Was lodged. Mr. Khawaja Naveed Ahmed in support of his arguments has relied upon the following case laws:--
(1) PLD 1983 SC 82 Murad Khan v. Fazal-e-Subhan and another (2) PLD 1990 SC 83, Mst. Bashiran Bibi v. Nisar Ahmed Khan, and others (3) PLD 1994 SC 133 Sarwar Sultan v. The State.
15. ' Mr. Rizwan Ahmed advocate for the complainant has also adopted the arguments of Mr. Khawaja Naveed Ahmed, however, he added that accused Mir Muhammad was arrested on 20-12-2004 and on his pointation a rifle was recovered from the graveyard. Messrs. Khawaja Naveed Ahmed Mr. Nasir Rizwan Ahmed advocate for complainant have conceded that statement of P.Ws. Pias Ali and Mehar Ali were recorded after 17 days. It is also stated by learned counsel for the complainant that no investigation was made by 1.0. Regarding plea of alibi raised by applicants Maqbool Hussain Shah, Maqsood Ali Shah and Safdar Ali Shah and Nimaz Din and there is no findings in the police file for the said plea of alibi.
16. ' Mr. Akhtar Saeed State counsel has adopted the arguments of learned counsel for the complainant party.
17. ' I have heard the arguments of learned counsel for the respective parties, examined the material placed on record and case laws cited at bar. As per documents brought on record by applicants Maqbool Hussain Shah, Maqsood Ali Shah, Syed Safdar All Shah alias Sikander Ali and Nimaz Din they were in custody of Levies Police at Gandawah of Balochistan Province as they were detained in arm case which was recovered from the vehicle, on the next day a valid licence of the said weapon was produced and the applicants were released. The applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Safdar Ali Shah Jehania alias Sikandar All Shah and Nimaz Din appeared before the High Court of Balochistan Bench at Sibi and filed an application bearing Protective Bail No.102 of 2004 for seeking protective bail in F. I . R . No.44 of 2004 registered at Police Station Daulatpur District Nawabshah for an offence under section 302/337-H (2)/147/148/149, P.P.C. On 21-12-2005 protective bail was granted to them for a period of fifteen days which was valid upto 5-1-2005. The applicant Nadeem Akhtar sought protective bail by filing Cr.
18. Bail No.896 of 2004 in the High Court of Sindh Circuit Court at Hyderabad vided order, dated 27-12- 2004. The applicant Ali Nawaz Shah alias Masroor Shah also surrendered before the Court of Sessions Judge Nawabshah along with the applicants Nimaz Din. Syed Maqbool Hussain Shah and Syed Safdar Ali Shah alias Sikander Ali Shah but their bail application was dismissed by impugned order, dated 30-12-2004 by learned Incharge Sessions Judge Nawabshah. The applicants Nimaz Din, Nadeem Akhtar and Ali Nawaz Shah alias Masroor Shah challenged the impugned order in the High Court of Sindh Circuit Court at Hyderabad whereas the applicants Maqbool Hussain Shah, Maqsood Ali Shah and Syed Safdar Ali Shah alias Sikander Ali Shah approached this Court for seeking bail before arrest in the above mentioned crime, as permission was accorded by Honourable Chief Justice for hearing of this bail application at Principal Seat vide order, dated 18-1- 2005. Bail application filed by Nimaz Din, Nadeem Akhtar and Ali Nawaz Shah bearing Cr. Bail No.20 of 2005 was also placed before me wherein interim bail was granted by this Court to the co- accused Maqbool Hussain Shah, and others as permitted by the Honourable Chief !=stice vide order, dated 31-1-2005. The applicants Nimaz Din, Nadeem Akhtar and Nawaz Ali Shah alias Masroor Shah were allowed bail vide order, dated 14-2-2004 subject to furnish surety in the sum of Rs.1,00,000 each and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.
19. ' In light of documents produced by the applicant Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safdar Ali Shah alias Sikandar Ali Shah and Nimaz Din were in custody of (Law Enforcement Agency) Levies at Gandawah Province of Balochistan. They produced such entries by filing Cr. Protective Bail No.102 of 2004 and sought protective bail and furnished required surety. The protective bail was valid for fifteen days. The applicants approached to the Court of Session at Nawabshah and produced order passed by High Court of Balochistan Bench at Sibi and also produced relevant entries regarding their detention. As per F.I.R. The incident has taken place on 4- 12-2004 whereas it was registered on 5-12-2004 at Police Station Daulatpur as Crime No.44 of 2004.
20. The applicant Nadeem Akhtar has also taken plea of alibi that he was far away from the place of incident. His plea is supported by affidavit of many persons. The name of Ali Nawaz Shah alias Masroor Ali Shah does not appear in the F.I.R. Nor his features are given. On 27-12-2004 his name was disclosed in 161, Cr.P.C. Statement by prosecution witnesses namely Pias Ali and Mehar Ali after 17 days. Admittedly, no investigation was carried out by the Investigating Officer regarding plea of alibi raised by Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safadar All Shah, Nimaz Din and Nadeem Akhtar, Mr. Khawaja Naveed Ahmeil and Rizwan Ahmed learned counsel for the complainant have conceded that no steps were taken regarding plea of alibi by Investigating Officer. It is argued on behalf of complainant that certificates are false and entries were recorded by Levies Police of Balochistan at the instance of Naib Tehsildar which are fabricated. Mr. Khawaja Naveed Ahmed has placed certificate bearing No.1079, dated 30th December, 2004 signed by Prosecuting Officer/Investigating Officer, District Jhall Magsi at Gandawah that the applicants Nimaz Din, Syed Maqbool Hussain Shah, Syed Maqsood Ali and Syed Safdar Ali Shah alias Sikandar Ali were never arrested nor remained in custody of Levies Police from 1st December, 2004 till now.
21. Whereas another certificate bearing No.60, dated 23-1-2005 issued by Investigation Officer Jhall Magsi in the above crime that the applicants were not detained nor any case was registered and powers of Naib Tehsildar have been suspended thereafter. There is another letter No.1-2004, dated 4-11-2004 regarding suspension of power of Investigating Officer. Mr. A .Q. Halepota learned counsel for the applicants has also filed a Certificate bearing No.49, dated 25-1-2005 issued by District Administrative Officer Jhall Magsi at Gandawah that on 4-12-2004 Nimaz Din, Syed Maqsood Ali Shah, Syed Maqbool Hussain Shah, Syed Safdar Ali alias Sikandar Ali Shah resident of Shahpurjehania were arrested and detained at Levies Police Station by Naib Tehsildar and a T.T.
22. Pistol was recovered from their possession. Arbab Shah owner of pistol had appeared before Naib Tehsildar and produced original licence and applicants mentioned above were released. It is further observed in the said certificate that administrative officer Levies District Jhall Magsi at Gandawah was unauthorized to issue the letter and certificate No.1079/dated 30-12-2004 which was issued by the Investigating Officer at Gandawah without any justification and there is no truth in it. The applicant Nadeem Akhtar also moved application before the learned Sessions Judge, ex- officio justice of peace, Director Human Rights Nawabshah with prayer that the direction may be issued to Inspector General of Police, Regional Police Officer at Sukkur, Deputy Inspector General Sukkur Division for inquiry. The learned Incharge Sessions Judge Nawabshah forwarded the application to the Regional Police Officer Sukkur for further proceedings as prayed but no investigation was conducted regarding the plea of alibi and no investigation was carried out after issuance of direction by learned Sessions Judge. Admittedly F.C. Suit No. 206 of 2004 was filed in Court of Second Senior Civil Judge Nawabshah by complainant Mashooque Ali as plaintiff and the accused Syed Maqsood Shah was respondent in the said suit along with other official respondents.
23. There is another suit being Suit No.199 of 2004 which was filed by one Syed Ibadat Ali alias Syed Hassan Jehania which is also pending in the Court of Second Senior Civil Judges Nawabshah. In the said suit Syed Maqsood Shah and Aftab Shah have been cited as respondents. The applicants/accused after seeking protective bail moved an application to the Highups for reinvestigation/impartial inquiry regarding the plea raised by them for their defence but no action was taken on such applications/telegrams after issuance of certificate by District Administrative Officer regarding the detention of applicants Maqbool Hussain Shah, Maqsood All Shah, Syed Safdar Ali Shah alias Sikandar Ali Shah and Nimaz Din. As there is no denial brought on record regarding the authenticity of such documents, the Naib Tehsildar/Investigation Officer also recorded the statement of Syed Arbab Ali and issued such certificate which was produced in the Lower Court as well as in this bail application. The applicants voluntarily appeared before the Investigating Officer and their statements were recorded wherein they took plea of alibi and stated they were not present at the time and place of incident. As they were in Suzuki Car in the Province of Balochistan and were detained by Levies Chowki Post, Naushero at Gandawah at 10.00 p.m. On 4-12-2004. They were released after production of original licence of T.T. Pistol by Arbab Shah on 5- 12-2004 at 8-00 a.m. The applicants Nadeem Akhtar also raised plea of alibi which too was not investigated in spite of direction issued by learned Incharge Sessions Judge Nawabshah, the name of Ali Nawaz Shah alias Masroor Shah was not disclosed at the time of registration of F.I.R. His name was disclosed by prosecution witnesses in 161, Cr.P.C. Statement. As per F.I.R. Specific part is attributed to Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Nawaz Ali Shah and Aftab Shah were seated in the Car whereas Maqsood Shah and Maqbool Shah having Kalashnikov, the applicant Sikandar Ali Shah armed with 'rifle and they came out from the said car and in the meanwhile 7/8 persons duly armed with weapons emerged from southern side. The applicants Mir Muhammad and Nadeem having rifles and Nimaz Din was armed with K.K. And they encircled the complainant party. Applicant Maqsood told them that their Murshid Hussain Shah and Asadullah were killed by them and then Syed Maqsood Shah fired from his K.K. Straight at Raza Muhammad alias Hussain. Who fell down, Maqbool Shah fired from his K.K. At Sadiq Ali which hit to him and fell down and Sikandar Shah fired straight from his rifle at Abdul Razak with intention to kill him. He also fell down and remaining persons appeared from Sugarcane Crop at that time Mir Muhammad, Nimaz Din, Nadeem Akhtar and unidentified persons fired on complainant party. Applicants Syed Maqsood Shah, Maqbool Hussain Shah, Syed Safdar Ali Shah alias Sikandar Shah - went away from the scene of incident in the same car and other culprits went in the Sugarcane crop while firing was continued. The applicants produced documentary evidence to prove that the applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali. Shah, Syed Safdar Ali Shah and Nimaz Din were in custody on the day of incident in the Provincie of Balochistan. The place of incident is within the jurisdiction of Police Station Daulatpur in the Province of Sindh but place of detention is far away from the place of incident in the Province of Balochistan at Levies Check Post at Naushero Tehsil Gandawah. The applicants were detained at 10-00 p.m. On 4-12-2004 and were released after production of original licence T.T. Pistol by Arbab Shah on 5-12-2004 at 8-00 a.m. District Administrative Officer Gandawah has issued certificate, dated 25-1-2005 to the effect that the applicants Nimaz Din, Syed Maqsood Ali Shah, Syed Maqbool Hussain and Syed Safdar Ali Shah alias Sikandar Ali Shah were arrested and detained by Levies Check Post by Naib Tehsildar. It is also observed in the certificate bearing No.1079/dated 30th December, 2004 of Investigating Officer Levies was wrongly issued without any justification and there is no truth in it.
24. ' There is documentary evidence brought on record that the applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safdar Ali Shah alias Sikandar Ali Shah and Nimaz Din were detained by Levies Police of Balochistan Province at Gandawah. At the time of their detention having a unlicensed T.T. Pistol of .30 bore and their car bearing registration No.3410 was taken in custody in the presence of Naib Tehsildar at Gandawah and such entries were incorporated.
25. Thereafter they were released after production of original licence of T.T. Pistol. The said entries were not disputed by Investigating Officer during the pendency of Investigation. The said entries were not referred, to examine for its genuineness and the complainant disputed the initial entries and brought certificate regarding its unauthorized entries. The final certificate regarding detention and release of the applicants was issued by the District Administrative Officer Jhall Magsi at Gandawah, dated 25-1-2005. From its perusal of such entries, it reflects that the above named applicants were in custody on 4-12-2004 at 10-00 p.m. And remained in custody till 5-12-2004 at 8-00 a.m. When Original Licence No.167 issued by SDM, dated 15-7-1999 was produced.
26. In view of, this position the presence of applicants at the place of incident is doubtful as there is distance of about 400 KM and plea of alibi was raised by them at initial stage. There is no reasons to doubt the authenticity of said evidence and there is possibility that the applicants have been involved in this case malafidely with ulterior motive. The Investigating Officer recorded their statement under section 161, Cr.P.C. Wherein they also took the plea of alibi and stated that they were not present at the place of incident but in fact they were detained at Levies Check Post at Naushero Tehsil Gandawah on 4-12-2004 at 10-00 p.m. But the said plea of alibi was not investigated at all and no reasons have been given by the I.O. It is manifest that I.O. Refused to accept certified/true copy of such entries, therefore the applicants moved complaint to the Higher Authorities. Therefore one of the follower Naeem Akhtar was asked to move an application under section 22-A of Cr.P.C. Before the learned Sessions Judge Nawabshah for issuance/direction to Regional Police Officer for further proceedings but no action was taken. The applicant Nadeem Akhtar has also raised the plea of alibi along with several affidavits filed by Ghulam Mustafa Korai, Abdul Sattar Jamali, Mir Muhammad Sial, Jamshed Wali alias Jamshed Ali. Plea of alibi of this applicant was also not investigated. The applicant Ali Nawaz Shah alias Masroor Shah does not appear in the F.I.R. Nor his features were given in the F.I.R. But he has been involved in this case as per statement of prosecution witnesses recorded under section 161, Cr.P.C. Statement. Admittedly case bearing civil suit No.206 of 2004 was filed by Mashooque Ali regarding management of Dargah Shahjehania and there was also another suit pending in the Court of Second Senior Civil Judge Nawabshah being a Suit No.191 of 2004 in respect of dispute over the question of Sajjada Nashini and a plot of land situated at National High Way Shah Jehania. There is possibility that the applicants have been involved in this case falsely, in collusion with the police as one Syed Maqbool Hussain Shah is rival group of the applicants. The applicant Maqbool Shah was shown armed with K.K. Whereas Safdar Ali alias Sikandar armed with rifle who was seen by complainant coming outside from the said car. It is further alleged that 7/8 persons emerged with Sugarcane Crop they were identified by other witnesses i.e. Mir Muhammad alisas Miro Lark, Nimaz Din alias Nimazo Bago and Nadeem Punjabi and co-accused Mir Muhammad and Nadeem (applicants) were allegedly that rifles were in their hands and Nimaz Din was armed with K.K. And rest of them were not identified. It is further alleged that they were encircled with the complainant. Syed Maqsood Shah told complainant party that there Murshid Hussain and Asadullah have been murdered along with other persons and they will not spare them saying so Maqsood Shah allegedly fired at Raza Muhammad who fell down since Syed Maqsood Shah fired from K.K. At Sadiq Ali which hit to him who also fell down. Sikandar Shah fired with his rifle which hit his Want' Abdul Razaque who also fell down.
27. In view of the plea raised by the applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safdar Ali Shah alias Sikandar Shah and Nimaz Din is accepted/relied upon then there is dent in the prosecution case about their presence at the place of incident. As the applicants were in custody of Levies Police of Balochistan on 4-12-2004 at 10-00 p.m. And they were released on 5-12- 2004 at 8-00 a.m. In the F.I.R., the alleged incident had taken place at 11-30 p.m. On 4-12-2004 while the applicants Syed Maqbool Hussain Shah, Syed Maqsood Ali Shah, Syed Safdar Ali Shah alias Sikandar Ali Shah and Nimaz Din alias Nimazo were taken in custody at 10-00 p.m. On the same date by Levies of Balochistan which creates doubts abouts presence of above named applicants at the place of incident. Then the presence of P. Ws. Is mala fide about the commission of the offence by the applicants. I am of the view that the plea of alibi so raised by the applicants and other co-accused namely Nimaz Din and Nadeem Akhtar will be considered by the trial Court while recording the evidence. Ali Nawaz Shah alias Masroor Shah was not involved initially in the F.I.R. But his name was disclosed by witnesses after delay of 17 days. In view of decision of Honourable apex Court in case of Murad Khan v. Fazle-e-Subhan (PLD 1983 SC 82). There are guidelines for grant of pre-arrest bail, the operative part of the observation in the above case is reproduced herein below:-- "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example that the humiliation and unjustified harassment is a necessary condition for pre-arrest bail. It would not be out of place to notice another case Rao Qadeer Khan v. The State. PLD 1981 SC 93, wherein indiscriminate grant of anticipatory bail was commented upon as follows. "We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to gain advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court."
28. ' It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty. It is not necessary to notice all of them in this case but it would be of some practicable advantage to take note of few cases in addition to the ones already mentioned where the condition in question was kept in mind. They are Muhammad Shafiq and another v. The State 1982 SCMR 384, Muhammad Azam and another v. The State 1980 SCMR 259 and Sardar Muhammad and others v. The State 1977 SCMR 326. In the case of Muhammad Shafiq although ground of mala fide on the part of the complainant in the case was asserted, this Court after examining the allegations and the nature of injuries involved in the case, observed that the High Court was right in saying that law should take its normal course and there was no justification for allowing pre-arrest bail". In the case of Muhammad Azam wherein this Court accepted departmental intrigues and jealousies and the intended arrest was to harass and ridicule the accused with an ulterior motive to disgrace them through the process of being handcuffed". In the case of Sardar Muhammad also this Court allowed anticipatory bail even in a hurt case, where the allegation was that the accused were implicated out of malice because they were the office-bearers of the Pakistan National Alliance. It was further suggested that the accused was being victimize by the Government then in power, on account of they being the office-bearers of the opposition party and that the purpose of arrest was victimization and humiliation."
29. In view of the grounds urged by applicants in Cr. Bail No.39 of 2005 and Cr. Bail No.96 of 2005 there are reasonable grounds to believe that the applicants/ accused in Cr. Bail No.39 of 2005 and co- accused Nimaz Din in Cr. Bail No.96 of 2005 were in custody of Levies Police of Balochistan Province Gandawah and they were detained and released by Law Enforcing Agency and such certificate has been issued by District Administrative Officer Jhall Magsi. The applicants/accused were in custody prior to the incident at the distance of 400 KM then how such accused were seen by the complainant and eyewitnesses at the place of incident. In fact they were released on 5-12-2004 at 8-00 a.m. There is sufficient material available on record to show that the applicants/accused have been involved malafidely with ulterior motives. There is dispute between them regarding the management of Dargah Shah Jehania and they are involved in civil litigations. The applicants/accused Nadeem Akhtar has also raised plea of alibi before the police as well as before the trial Court which was not considered by the Investigating Officer. If presence of Syed Maqbool Hussain Shah and others is accepted, with levies police at Balochistan then presence of other applicants including the presence of Nimaz Din and other co-accused seems to be doubtful at the place of incident on 4-12-2004 at 2330 hours.
30. Keeping in view, the above circumstances and in the light of decision passed by the Honourable apex Court in case of Murad Khan v. Fazle-e-Subhan (PLD 1983 SC 82), I am of the view of applicants/accused have made out a case for confirmation of their bail. However, keeping in view of crime. I enhance the amount of surety bond. Therefore, their bail is confirmed subject to furnishing stringent amount of Rs.2,00,000 (Two hundred thousand) each and P.R. Bond in the like amount with. The Nazir of this Court within seven days.
31. ' The applicants are directed to appear before the trial Court and face the trial proceedings. The prosecution will be at liberty to file bail cancellation application by bringing tangible evidence to show that their plea of alibi so raised by the applicants/accused was based on fabricated documents/certificate issued by the District Administrative Officer Jhall Magsi regarding the entries made by the Naib Tehsildar.