1. Facts of the case are that an FIR Bearing No, 59 of 2003 was lodged with Police Station, Saddar, Quetta on 27th March, 2003 by one Ghulam Hussain son of Haji Fazal, caste Baratzai, under Section 302/34 PPC. It was stated by the complainant that he is running a hotel in Spin Rarez coal depot and is residing with his brothers in Killi Ismail. At 5:30 p.m. in the evening, the came to his house after having done his job, at 6:30 p.m. in the evening, the was informed by some child that his brother Shaukat Ali has been fired at, in Zahir hotel and people have taken him to hospital. He further stated that he reached hospital immediately where many people of the .locality/killi were gathered, and dead-body of his brother Shaukat Ali was kept. On reaching hospital, Raheem Dad son of Alam Khan, Abdul Zahir son of Abdul Ghafoor and Abdul Rasheed son of Haji Mania Bakhsh informed him that he (Shaukat alongwith two/three persons were sitting in the hotel of Abdul Zahir; at about 6:20 p.m. Muhammad Iqbal alias Balay alongwith his brother Murad sons of Ghulam Muhammad and paternal uncle Yar Muhammad son of Raheem Dad armed with pistols entered in the hotel and aimed pistols on Shaukat Ali and made lalkara' that they will not leave him alive, people because of fear, sided them. It was further stated that Muhammad Iqbal alias Balay amongst accused persons, fired with TT pistol whereupon Shaukat Ali was seriously injured and accused persons fled away; the other people had taken him to hospital in injured condition, who in the way succumbed to injuries. It was further stated that motive of the incident is that they have an old enmity and because of that, they have committed murder of this brother.
2. On the basis of report lodged, challan was submitted on 25th August, 2003, .however, record shows that applicant remained absconder; record further shows that applicant/accused Yar Muhammad was arrested from Nawabshah Sanghar road on 2nd April, 2004 and matter was challaned before Sessions Judge. Record also shows that charge was framed, which was denied and statements of six witnesses have already been recorded. Bail application was filed before Additional Sessions Judge (Adhoc) Quetta, which was dismissed vide order dated 30th April. 2005. Present bail application has been filed by the applicant/accused.
3. I have heard Syed Ayaz Zahoor, learned counsel appearing for applicant/accused while Mr. Abdul Karim Langove, counsel for State assisted by Mr. Ehsan-ul-Haq, counsel for complainant, appeared.
4. Learned counsel for applicant has contended that there is no specific role, attributed and that the case is of simplicitor lalkara' , as such, it is a case of further enquiry, entitling the applicant to grant of bail. Learned counsel referred to judgments reported in PLD 1998 SC 97 and YLR 2003 Lahore 1378.
5. On the other-hand, learned counsel for complainant stated that applicant/accused alongwith co- accused persons had come to scene after having prepared and duly armed. It was further stated that in view of peculiar circumstances, applicant is equally liable for commission of offence having facilitated murder of deceased Shaukat Ali; he is not entitled to the grant of bail. Learned counsel for complainant has referred to judgments reported in 1969 SCM R 599. and 1981 SCM R 1092.
6. I have considered the arguments advanced by parties' learned counsel and evidence on record, and faund that PW-1 Ghulam Hussain, who is complainant, stated that he was informed by some child that his brother has been injured in a hotel of Zahir at Killi Ismail, and; he has been shifted in injured condition to hospital. He further stated that he reached hospital where people of his killi, were present and dead-body of his brother was kept there. It was further stated that in the hospital, owner of hotel namely Zahir, Raheem Dad and Rasheed informed him that in their presence, Iqbal alias Balay, Murad and Yar Muhammad duly armed with pistol, on their arrival made `lalkard to people sitting with him (deceased) to be aside, and firing was made by Iqbal alias Balay, and, all the three persons fled away. The said version was supported by PW-2 Abdul Zahir in verbatim. He is eye-witness of the incident, who had stated that at 6:20 p.m. Abdul Malik alias Balay, Muhammad Murad and Yar Muhammad duly armed with pistols entered in his hotel and aimed pistols on Shaukat Ali and also threatened that they will not leave -him alive. It was further stated that people were also threatened that if anybody interfere or left his place, he will be murdered, and thus; Iqbal alias Balay made firing upon Shaukat Ali, who was seriously injured and fell down and all the three accused persons ran away towards lane of Madrasa. Above version has also been supported by PW-6 Abdul Rasheed in material, who is also an eye-witness.
7. Above three witnesses are supported by statement of PW-4 Abdul Rasheed SI, who had prepared fard of discovery (Ex. P/4-A). It was also stated by him that applicant/accused led to the place of incident and pointed the place where occurrence had taken place. He had also pointed the place where Shaukat Ali was sitting and Iqbal alias Balay accompanying other accused, made firing. The said statement is also corroborated from the recovery of clothes and waistcoat, which were sustained with blood, having been produced by PW-5. From tentative assessm ent of above evidence, it is quite clear that applicant alongwith other co- accused persons came to place of incident, duly armed with pistols and Iqbal alias Balay made firing, resulting in to death of Shaukat Ali. So far as, contention of learned counsel for applicant that simplicitor `lalkara' was made and no overt act attributable to applicant, is not correct. So far as, the judgment referred to i,e, 1998 SC 97 relates to the grant of bail, in case plea of alibi was claimed in the case of pre-arrest bail. The case referred by learned counsel is related to anticipatory bail of an Assistant Taxation Officer in Municipal Corporation Peshawar. It is to observe that in this case also pre-arrest bail granted, was cancelled by the Honourable Supreme Court. The facts and circumstances of that case are not applicable in the present case. Similarly, the other judgment referred, related to `lalkara' and bail granted by Single Bench is distinguishable from the facts of present case, as the applicant alongwith other co-accused had come in the hotel duly armed with pistols and question of common intention was not examined in the said case. The facts and circumstances from the above evidence show that the applicant had connived, participated and facilitated in the commission of offence, and, no case is made out for grant of bail. The judgment referred by the learned counsel for complainant i,e, 1981 SCM R 1092 applies on all force; relevant observations are reproduced as under:-- "Now, in the present case, it is alleged that the petitioner and his companions had come fully armed with deadly weapons, and that it was in pursuance of their common intention that one of them fired at the deceased, whereas the shots fired by the present petitioner caused injuries to Sadiq complainant. In these facts it is not possible to hold that the petitioner did not share any common intention with the accused whose shot actually hit the deceased. In the circumstances the learned Judge in the High Court was right in thinking that the principle of vicarious liability was attracted to the petitioner. The petition, accordingly, fails and is hereby dismissed."
8. The Superior Courts are very slow for grant or examining bail matters, particularly when statements of material witnesses have already been recorded and the trial is ripe for conclusion. I am fortified with the view, expressed by their lordships, in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). Relevant observations are reproduced as under:- "The first point is not much in context. It is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned Judge in the High Court with regard to prejudiced, with respect, it is pointed out, would not be correct; because, the principle underlying the above-stated practice is directly relatable to the "question of prejudice".
9. Thus, without deeply examining the case, I am of the considered opinion that no ground for grant of bail is made out at this stage. Application is accordingly dismissed. Observations made herein- above shall have no bearing at the time of final decision of the case.