' ABDUR RAHMAN FARUQ PIRZADA, J.--- By this order I propose to dispose of two bail applications viz. Criminal Bail Application No,575 of 2007, on behalf of applicants Asghar Ali and Morio and Criminal Bail Application No,66 of 2008, on behalf of applicants Haji Khan and Gulsher, as both applications pertain to came case. The applicants seek bail in case vide Crime No,72 of 2007, Police Station K.N.
Shah for offence under sections 302, 324, 337-A(i), 337-F(i), 147, 148, 149, P.P.C.
2. The F.I.R. Was lodged by complainant Haji Muhammad Ramzan at Police Station K.N. Shah on 10- 4-2007, at 9-15 a.m. As briefly stated, the prosecution case as per F.I.R. Is that the complainant had five brothers. About two years prior to F.I.R. Accused Asghar Ali had abducted complainant Marot Mst. Khadija and married her, for which such case was not registered by complainant party. About four months prior to F.I.R. Complainant's Marot left accused Asghar Ali and came to complainant party and was residing with complainant and his brother Fazul Rehman,. Accused Asghar Ali used to convey messages to complainant party that his wife Mst. Khadija may be returned to him, however, the complainant party refused to do so as the lady did not desire to go back; as a result accused Asghar Ali was annoyed and used to publicly proclaim that he would cause harm to the complainant's family. On 9-4-2007, the complainant, his brother Fazul Rehman, Ghulam Abbas, Muhammad Qasim and brother Habibullah, came to offer Isha prayers in the mosque near complainant's house where they offered prayers along with the persons belonging to Tableegi Jamaat. After completion of prayers at 9-00 p.m. There was religious sermon by Naimatullah the head of Tableegi Jamaat, the complainant party came out of the mosque at about 9-30 p.m. As they reached in the courtyard outside the mosque they saw in the light of electric bulbs and identified accused Asghar Ali armed, Ghulam Ali alias Ghulam armed with kalashnikovs, Haji Khan armed with rifle, Gulsher with repeater and two unidentified persons armed with guns. Accused Asghar Ali and Ghulam Ali made challenges to complainant party while saying that they would not be spared; while saying so they fired straight shots with kalashnikovs upon complainant party, on which the complainant party ran inside the mosque. The above accused persons made indiscriminate firing behind the complainant party, who took cover of the walls inside the mosque.
This firing continued for ten minutes and the village people also made firing and made challenges, on which the firing upon complainant party was stopped. Thereafter, all the accused went away through the main gate towards eastern side. Thereafter, the complainant party found that complainant's brother Fazul Rehman had sustained fire-arm injuries on his left thigh and was bleeding, whereas Safiullah and Taveez Gul of Tableegi Jamaat had also sustained injuries caused by bullets. They saw outside in the courtyard that Kamber Jan and Rehmatullah, both from Tableegi Jamaat had sustained injuries by bullets and had expired. Such information was given to the police by mobile phones and the injured persons were carried to Government Hospital K.N.
Shah for medical treatment. The dead bodies of deceased Kamber Jan and Rehmatullah were carried by relatives of the complainant. All the three injured persons were referred to C.M.C.
Hospital Larkana, and they were carried through complainant to C.M.C. Hospital Larkana and were admitted there. Subsequently, F.I.R. Was lodged.
3. Learned counsel for applicants has contended that only general allegation of firing was attributed to the applicants, whereas the specific role of murdering two deceased persons Kamber Jan and Rehmatullah was assigned to co-accused Asghar Ali and Ghulam Ali. He contended that the motive for commission of alleged offence was also attributed to co-accused Asghar Ali, who was said to be inimical to complainant party, due to dispute over his wife Mst. Khadija who was residing with complainant party and did not return back to accused. The names of Ali Asghar and Morio did not transpire in the F.I.R., and they were implicated in the case on the basis of foot prints test only. He has also contended that both the applicants Asghar Ali and Morio were never put to any identification test in presence of the competent Magistrate, which was necessary since their names did not appear in F.I.R. And they were previously not known to complainant party. According to learned counsel for applicants, the accused persons had no motive whatsoever to kill the persons belonging to Tableegi Jamaat, who lost their lives due to indiscriminate firing.
4. Mr. Nisar Ahmed Abro, learned State counsel conceded to the grant of bail to two applicants, namely, Asghar Ali and Mario, as their names did not transpire in F.I.R. And there was no sound basis for their involvement in present case, since they were involved simply on the basis of foot prints test. He has opposed the bail plea of applicants Haji Khan and Gulsher, as their names are specifically mentioned in the F.I.R., who were said to have made firing upon complainant party. He has also opposed the bail, on the ground that lives of two innocent persons were lost, and three persons were injured, as a result of firing made by accused persons.
5. I have considered the submissions of the learned counsel for applicants and learned State counsel, and have perused the relevant case papers. As per F.I.R. Initially co-accused Asghar Ali and Ghulam Ali made challenges to complainant party and fired with kalashnikovs, whereafter the complainant party ran inside the mosque whereupon all the accused persons made indiscriminate firing upon them. As a result of firing two persons viz. Kamber Jan and Rehmatullah were murdered, whereas three persons namely Fazul Rehman, Safiullah and Taviz Gul received injuries on their persons. It may be significant to note that this firing continued for ten minutes, which would strongly suggest the common intention on the part of accused to commit the alleged offence. As per F.I.R. Only when the village people started firing and made challenges, the firing made by the accused persons upon complainant party could be stopped. According to Mashirnama of Vardat, several empties of bullets and .12 bore cartridges were recovered, which may corroborate the fact that several shots were fired at the time of offence at Vardat. In the circumstances I do not find the case of applicants Haji Khan and Gulsher fit for bail, since both of them were named in F.I.R.; applicant Haji Khan allegedly carried a rifle and applicant Gulsher was armed with repeater and both of them fired upon the complainant party indiscriminately for about ten minutes, as a result of which two persons were killed and three persons were injured.
Accordingly, the bail application of applicants Haji Khan and Gulsher is rejected.
6-A. So far as the case of applicants Asghar Ai and Morio is concerned, admittedly the same stands on different footings from that of the co-accused persons. Both the applicants, namely, Asghar Ali and Morio are not named in the F.I.R. They were implicated in the case only on the basis of foot prints test, which was held on 25-4-2007, which was after the lapse of about 16 days of the incident. This piece of evidence obviously cannot carry any weight in the eyes of law, and it has always been held the weakest type of evidence. It may be important to note that both these applicants, who were not previously known to the complainant party, were never put to the identification test, so that the complainant party would have identified them. Learned State counsel has rightly conceded to the grant of bail to these two applicants, as he stated that no identification test was held and no such Mashirnama of identification is available in the police papers.
7. Learned counsel for applicants relied upon case Kak alias Abdul Razzak v. The State PLD 1965 (W.P.) Kar. 31, according to which the identity of accused was held as not of much value, when the identification parade was not held, and the prosecution witnesses were not acquainted with accused prior to occurrence. He has also relied upon case of Shafi Muhammad v. The State PLD 1971 Kar. 721, in which it was held that the identification of marked foot prints was very weak type of evidence and carried no weight by itself. The reliance has also been placed on an unreported authority of law in the case of Umed Ali v. The State Criminal Bail Application No,40 of 1996, wherein bail was granted to applicant, when the accused were involved in the case on the basis of foot prints test and the same test was held to be a very weak type of evidence.
8. It may be pertinent to make respectful reference to the ease of Shafu alias Shafi Muhammad v.
The State 1971 SCM R 200, wherein the Honourable apex Court has held as under:-- "The person who is alleged to have identified the footprints had seen the footprints at the place of occurrence 20 days before he was asked to identify the footprints of the appellant. He had made no moulds of the footprints found at the place of occurrence and he is supposed to have carried on impression of those footprints in his mind for a period of three weeks."
10.(sic) In view of the above facts and circumstances applicants Ali Asghar and Morio are entitled to concession of bail; their bail application is allowed and they may be released on bail on furnishing their solvent sureties in the sum of Rs,1,00,000 each and P.R. Bonds in the like amount to the satisfaction of the trial Court.