1. ' NADEEM AZHAR SIDDIQUI, J.---The applicant is facing trial in Crime No,6 of 2004, registered at Police Station K.T. Mumtaz, under sections 302, 148, 149, P.P.C. The F.I.R. Was lodged by complainant Rano Khan on 14-4-2004 at 13-30 hours. The facts as stated in the F.I.R. In nutshell are that the complainant saw and identified accused persons, namely, Ghulam Hyder, Aman, Bhoro, Muhammad Ali, Ghulam Rasool, Latif and one unidentified person with guns in their hands and the accused Aman, Bhoro, Muhammad Ali, Lateef and unknown culprits directly fired gun-shot at Mukhtiar Ali and Ghulam Qadir As per the F.I.R., Mukhtiar Ali got injuries on abdomen from right side near nipple and on other parts of the body and Ghulam Qadir got fire-shot injury on chest and both passed away at the spot.
2. ' The applicant/accused was arrested and filed bail application before the VII-Additional Sessions Judge, Larkana, who dismissed the same on 5-7-2005 on the following consideration.
3. "Under these circumstances since the name of applicant/accused transpires in the F.I.R. And specific allegation of firing shots directly with co-accused to deceased Mukhtiar Ali has also been attributed to him and applicant/accused had not only taken an active part in commission of the offence in which two innocent persons have lost their lives but he had fully shared his common intention to the co-accused in the commission of the offence and also facilitated them, the applicant/accused Abdul Lateef at this stage is not entitled to the concession of bail. Accordingly, the bail application in hand stands rejected".
4. ' The learned counsel for the applicant submitted that though the name of the applicant was mentioned in the F.I.R. But no specific role has been assigned to him. No recovery of any incriminating material was made from the applicant. No specific injury caused to both the deceased persons were attributed to the present applicant. He further submits that the post- mortem report shows that injuries Nos.1-A, 1-B and 2 were found sufficient to Cause death, but none of those injuries is attributed to the applicant and it is to be determined at the trial that out of five accused persons who has fired fatal shots at the deceased persons resulting in causing their death. He further submits that the Investigating Officer in the police diary dated 21-4-2005 has mentioned that only accused Amanullah was present at the scene of offence and he is responsible for the incident. He contended that this creates doubt and makes the case one of further inquiry.
5. He further contended that since the applicant is in custody for more than one year without proper trial, therefore, he is entitled for the concession of bail.
6. ' The learned counsel relied upon the following reported cases in support of his arguments.
(1) Nadeem Burney v. The State (1999 M LD 1259 Karachi),
(2) Allah Bux v. The State (2005 PCr.LJ 698),
(3) Shafi Muhammad v. The State (2002 PCr.LJ 494),
(4) Mumtaz Hussain v. The State (1995 SCM R 1125),
(5) Shoaib Mehmood Butt v. Iftikhar-ul-Haq (1996 SCMR 845).
7. ' On the other hand, Mr. Ali Murad Abro, the learned counsel for the complainant has submitted that the F.I.R. Was lodged without any delay and loss of time, the incident took place in the broad- daylight and there was no possibility of mistaken identity. Name of the applicant appears in the F.I.R. And specific role has been attributed to the applicant, the medical evidence is in conformity with the ocular version. He further submits that the allegation was that five armed persons including the applicant fired on Mukhtiar, who got five fire-arm injuries on his person and empty cartridges have been recovered from the place of occurrence, which too strongly supports the version of the complainant narrated by him in the F.I.R. He further submits that the observation and the opinion of the Investigating Officer is not binding upon the Court and the same cannot be used as a piece of evidence. The learned counsel for the complainant has relied upon the following reported cases to support his contentions.
(1) Ghulam Nabi v. The State (1996 SCM R 1023),
(2) Muhammad Hanif v. Manzoor (1982 SCM R 153),
(3) Umar Farooq v. The State (2001 PCr.LJ 1059),
(4) Khadim Hussain v. Shoaib Afzal (2000 PCr.LJ 974),
(5) Sohail Ahmed v. The State (2000 PCr.LJ 235).
8. ' The learned Asst. A.-G., adopted the arguments advanced by learned counsel for the complainant and further added that since the ocular account is supporting the medical evidence and that two persons were killed and empty cartridges were recovered from the place of occurrence, therefore, there appear reasonable grounds to believe the applicant being guilty of the offence with which he is charged and he is not entitled to the concession of bail.
9. ' I have heard the learned counsel for the parties, perused the record made available before me and the reported cases cited by the learned counsel. The first contention of the learned counsel for the applicant that no specific role has been assigned to the applicant, appears to be incorrect. In the F.I.R. It was clearly stated that the applicant had gun in his hand and he along with co-accused persons fired on the deceased persons and both of them expired at the spot. This shows that specific role of firing and causing death of deceased persons by fire-arm injuries has been attributed to the present applicant. As far as recovery is concerned, the empty-cartridge were recovered from the place of occurrence, which supports the version of the complainant. As far as the contention of the learned counsel that no specific injury was attributed to the present applicant, suffice it to say that the applicant armed with gun along with co-accused persons by firing on the victim shared common intention to kill the two victims, who both got fire-arm injuries and expired at the spot. The next contention of the learned counsel for the applicant is that out of the injuries caused to the deceased-persons no specific injury was attributed to the present applicant as such the case is of further inquiry. In this regard the post-mortem report is clear.
10. Mukhtiar Ali got five injuries and the allegation is that five armed persons have fired upon him. This indicates that out of five injuries at least one was caused by the present applicant. Since at the bail stage deeper appreciation of evidence is neither desirable nor permissible and only it is to be seen whether on the basis of material collected by the prosecution, prima facie, the applicant can be connected with the commission of the crime or not. On tentative assessment of the statements of P.Ws., recovery of cartridges from the place of vardat and the post-mortem report, a prima facie case has been established against the applicant. The last contention of the learned counsel is with regard to some observation of the Investigating Officer in the police diaries. In this regard it may observed that the opinion of the Investigating Officer and his observation in the police diaries are not binding upon the Court and the same cannot be used as piece of evidence for a simple reason that it is not clear as to how and on what basis the Investigating Officer has formed such opinion.
11. Secondly, in presence of ocular as well as medical evidence, which are supporting each other, it is not understandable that how the Investigating Officer has recorded a finding that only accused Amanullah was available at the place of vardat and he was only responsible for the incident.
12. ' The first case cited by the learned counsel for the applicant is the case of Nadeem Berny (supra) in which the bail was granted on the consideration that general type of allegation were made and no specific role was assigned. In the case of Allah Bakhsh (supra) also the bail was granted on the consideration that nothing incriminating was secured from the accused and only one empty had been recovered and no specific role was assigned except the role of general allegation. In the case of Shafi Muhammad (supra) the bail was granted on the consideration that only one blow was attributed to the accused therein and it was yet to be seen as to who had given the fatal blow and that only one blow was attributed to the applicant in the said case. Both the above cases have distinguishable facts. In the case of Mumtaz Hussain (supra) the Hon'ble Supreme Court granted bail on the consideration that though the applicants in that case were armed with deadly weapons like rifle, gun and hatchet but had caused simple blunt injuries to some of the P.Ws. Using the wrong side of their weapons and it was held that in these circumstances whether they shared common intention with those who caused death of deceased, needs further inquiry. In the case of Shoaib Mehmood Butt (supra) the Hon'ble Supreme Court while dealing cancellation of bail has held that in a case of two versions arising from the same incident one given by complainant in F.I.R.
13. And the other given by opposite party was covered by the principle of further inquiry and did not interfere into the order passed by the High Court granting bail.
14. ' On the other hand, in the case of Ghulam Nabi (supra) cited by learned counsel for the complainant, the Hon'ble Supreme Court refused to interfere with the order of the High Court refusing bail on the ground that the accused therein was the only person having motive to do away with the deceased and prima facie principle of vicarious liability was attracted. In this case also from going through the F.I.R., the motive is clear as the accused party was annoyed with the complainant party for inquiring about the missing cattle. The other case-law cited by learned counsel for the complainant i.e,, the case of Muhammad Hanif (supra), in which the Hon'ble Supreme Court has held that at the bail stage the Court is not to enter upon the detailed appreciation and examination of the evidence and the Court has to look the material available. It was further held that the medico-legal examination was available but the learned High Court has refused to look into it and as that the two respondents in the said case were empty handed, the learned High Court was perfectly justified in drawing tentative conclusion as to the part alleged to have been played by them in the transaction, which resulted in the death of deceased. In the case of Umar Farooq (supra) cited by the learned counsel for complainant the Hon'ble Supreme Court while dealing a case of cancellation of bail has held as under:-- "8. After hearing the respective contentions of the learned counsel for the parties, it may be stated that deeper appreciation of evidence at the stage of bail, time and again, held by the superior Courts, is neither desirable nor permissible".
15. ' In the case of Khadim Hussain (supra) with regard to unlawful assembly and vicarious liability it was held as follows:-- "7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated at the very outset that it cannot be laid down as an inflexible rule of law that question of vicarious liability cannot be determined at the stage of bail. If in the circumstances of the case it can be gathered that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy that participated in the commission of offence, the question of vicarious liability applies with full force. However, this has to be ascertained cautiously without entering into detailed scrutiny and appreciation and merits of the case of the prosecution. For application of section 149, it is necessary:--
(i) That one should be a member of an unlawful assembly;
(ii) that in prosecution of common object of that assembly the offence should be committed by a member of an unlawful assembly; and
(iii) that the offence should be of such a nature that members of the assembly knew that offence is likely to be committed in prosecution of their common object."
16. ' In the case of Sohail Ahmed (supra) a learned Single Bench of this Court has observed as follows:- - "6. The perusal of record shows that the complainant in his further statement and eye-witnesses Allah Bux, Muhammad Javed and Muhammad Ibrahim in their statements under section 161, Cr.P.C.
17. Have categorically stated that applicant and one Muhammad Farid being armed with lethal weapons instigated co-accused Abdul Ghafoor and Muhammad Yousuf to finish the complainant party. The words, which they uttered were (sic) whereupon they opened fire with the result three persons from complainant party succumbed due to the injuries on the spot and the fourth one also received injuries of fire-arm but he survived and a poor way-farer young boy aged about 10 years became victim of the blood-feud between the parties and lost his life for no sin of his. It was broad- daylight incident. The applicant is not resident of the place where this unfortunate incident occurred. He had come with the co-accused from a distant village. Looking towards the peculiar facts and circumstances of the case, prima facie, the common intention was to kill as many persons as possible of the complainant party. The reckless firing also robbed a young boy of his life who was in his teens and had not seen the spring of the life, which was yet to come. Merely, because applicant did not use fire-arm is no ground for the grant of bail in the case in hand. It is not a rule of universal application that in each and every case where accused did not use the fire- arm it was a case of no overt act and or that such a case automatically becomes one of further enquiry".
18. From the above and looking to the material it is established that accused armed with guns have fired upon the two deceased and had shared common intention with co-accused to kill the deceased persons and merely because at this stage it is not ascertainable that which of the accused has caused fatal injuries to the deceased persons, the bail cannot be granted.
19. Furthermore, keeping in view the principle that deeper appreciation of evidence is neither permissible nor desirable, this question cannot be gone into at this stage and to decide whether the applicant has caused fatal injury or not, deeper appreciation of evidence is required, which is not permissible. Keeping in view the above principle of law, it appears that reasonable grounds exist to believe that the applicant is guilty of the offence, with which he is charged and is not entitled to the concession of bail. The bail application is, therefore, dismissed.