' SYED MAHMOOD ALAM RIZVI, J.--- Since both the bail applications are upshot of the same F.I.R. And same impugned order, hence heard together and disposed of by this common order.
2. That the bail application have been directed against the impugned order passed by the learned 2nd Additional Sessions Judge, Thatta in Sessions Case No,32 of 2008 in Crime No,64 of 2008 under sections 302/324/504/147/148/149/114/34, P.P.0 . , by which after arrest bail applications of the applicants were turned down.
3. Precisely, the facts of the prosecution case are that due to political reasons regarding the pasting of posters of political leader the accused persons annoyed, as a result, the above incident was occurred on 19-2-2008 at 7-30 p.m., while the complainant along with Alam, Abdul Majeed, Muhammad Nabhayo, Anwar Hussain Jokhio and other neighbours were sitting in their political office. Meanwhile, Irshad, Hafeez and Muhammad, duly armed with pistols in their hands, Khalid Mahmood having gun, Abdul Ghafoor having Lathi (the applicant in Criminal Bail Application No,624 of 2008), Nawaz, duly armed with Lathi and Wadero Siddiqui, armed with pistol (the applicant in Criminal Bail Application No,634 of 2008) and on the instigation of accused/applicant Siddiq, the co-accused fired upon the complainant party. In the F.I.R. Particular role has been given to every accused, as accused Irshad Mir Bahar made straight fire to Ayaz Hussain (later on died on 21-2-2008), which hit on his forehead, accused Hafeez Mir Bahar injured P.W. Alam Chang by his pistol, accused Muhammad Machi injured P.W. Abdul Hameed by his pistol, which hit on his left arm, accused Khalid Mahmood made straight fire with his gun towards the complainant party, but no one received injuries. Accused/applicant Abdul Ghafoor gave Lathi blow on the left leg of the complainant. They also beat them with their fists and kicks blows and on their cries other witnesses reached there and released them, hence the accused persons fled away and thereafter, the injured were taken to Makli Civil Hospital from where as per letter of the police, injured P.W. Ayaz Khan and P.W. Alam Chang were referred to Karachi being in serious condition, and were hospitalized, while injured Abdul Hameed was admitted to Civil Hospital, Makli. Per F.I.R. The complainant remained at Karachi and on the next day, after 20 hours, he lodged the F.I.R. At 1505 hours.
4. That after registration of the above F.I.R. On 21-2-2008, the injured Ayaz succumbed to his injuries, therefore, section 302, P.P.C. Was added.
5. Per learned counsel for the applicant Abdul Ghafoor, as he came to know about the above case regarding his involvement, he approached to this Court on 25-2-2008 and obtained a protective bail on 26-2-2008 for 15 days and thereafter, he approached to learned Sessions Judge Thatta and surrendered himself and filed an application for bail before arrest on 3-3-2008, interim pre-arrest bail was granted by learned 2nd Additional Sessions Judge, Thatta, i.e. The trial Court, as the same was transferred to the trial Court.
6. That applicant Muhammad Siddique Mallah approached to this Court on 26-2-2008, protective bail was granted on 27-2-2008, while the case was under section 324, P.P.C. And subsequently, after the death of the deceased Ayaz, section 302, P.P.C. Was added, hence the same was extended for further 15 days vide order, dated 12-3-2008 and on 19-3-2008, e applicant approached to the learned trial Court and filed pre-arrest bail application and interim pre-arrest bail was granted to him. Thereafter, by common order, their pre-arrest bail application was dismissed on 9-5-2008 and they were taken into custody from the learned trial Court and remanded to judicial custody as the interim challan was already submitted before the said Court on 11-3-2008.
7. Thereafter, bail after arrest application was filed on 16-5-2008 and the same was dismissed by the above impugned order.
8. Mr. M.A. Kazi, learned counsel for the applicant Abdul Ghafoor, inter alia, contended that the applicant has been implicated in this case with mala fides, ulterior motives and due to political reasons. In this regard, he has referred a certified copy of urgent meeting dated 28-1-2008 held by the Citizen Community Board, Network, District Thatta, which was presided by the applicant himself and by that meeting the Secretaryship of the complainant was temporarily switched off and other person was made as General Secretary of the Board. The reason given, as per minutes of general meeting, that the complainant was overburdened in other matters.
9. That just after 21 days, the said incident was occurred and the applicant has been implicated with the particular role of giving Lathi blow to the complainant, but strangely, the said injury has not been supported by the medical evidence though the complainant said to have taken all three injured to Civil Hospital, Makli and subsequently, two injured to Karachi and remained in the hospital and if had he been injured, he could have examined himself. Even no M.L.R. Is available with the prosecution, which makes the case doubtful.
10. He further contended that the complainant has not assigned any particular role that the applicant has caused any injury on the above mentioned three injured and admittedly, as per prosecution case, he had no fire-arms and even no further overt act has been assigned to him. He further contended that though the incident was said to have occurred at 7-30 p.m. On 19-2-2008, the matter was reported to police as the police given a medical slip bearing No,119/2008 and one injured Abdul Hameed, who received a bullet injury on his left arm, was remained present, who was conscious and well-oriented at Civil Hospital Makli but even then the F.I.R. Was lodged after passing of 20 hours and that was sufficient time to implicate the accused persons with the particular weapons and causing particular injuries, hence the F.I.R. Itself is after consultation and afterthought, hence lost its evidentiary value.
11. He further contended that the statement of the eyewitnesses/injured, recorded after 3 days, also make the case doubtful. He lastly, contended that the investigation has been completed. That as per F.I.R. Besides the injured and complainant, the other prosecution witnesses were said to have present at the place of incident, but no one became the complainant or lodged the report. He relied upon Ghulam Ali v. Muhammad Yousuf 1987 SCM R 857, Tariq Parvez Butt v. Muhammad Sultan and others 1986 SCM R 1654, Muhammad Sadiq v. The State 1996 SCM R 1654 and Farzand Ali v. Taj and others 2000 SCM R 1854.
12. Mr. Mahmood A. Baloch, learned counsel for the applicant Muhammad Siddique Mallah, adopted the arguments of Mr. Kazi and further added that as per MLR and post-mortem reports, the time of incident shows 5.35 p.m., while the arrival at Thatta Hospital at 6-15 p.m., which shows that the whole case became doubtful as far as the time of incident is concerned, which also shows that the presence of the complainant himself at the relevant time was highly doubtful and he has relied upon Sultan Ahmed v. The State 1981 SCM R 771, in which the bail was granted to accused who had an arm, but did not use the same, which shows that his intention was not to kill anybody and the injuries said to have attributed to other co-accused and the main allegation against the applicant was to raise Lalkara/instigation to other co-accused.
13. Conversely, Mr. Muhammad Iqbal Kalwar, Additional Prosecutor-General, vehemently opposed these applications and inter alia, contended that sections 34 and 149, P.P.C. Are clearly made out and every person, present, is responsible for an act if committed by one and in this particular case the accused persons came with common intention at the place of the complainant party and abused them and started firing with intention to kill them and thereafter, also beaten them with fists and kicks, which is ultimately proved that one person succumbed to his injuries and two others received bullet injuries, hence they are not entitled for bail.
14. That regarding the delay, the learned A.P.-G. Contended that as the complainant went to Karachi with injured persons, being the serious condition, hence injured Ayaz ultimately succumbed to his injuries and he had to remain there, therefore, the F.I.R. Was lodged after 20 hours, which has been rightly discussed in the impugned order. He fairly admitted that in the police file neither the Entry No,119/2008 nor the first entry regarding the incident is available.
15. That regarding the enmity or political dispute, he has contended that this is double-edged weapon, which also strengthen the prosecution case and clarifies the motive of the incident. The accused persons were named in the F.I.R. With particular role, having deadly weapons in their hands, so at this stage, prima facie, case is made out against them and particularly Abdul Ghafoor has not come to this Court with clean hands as he had taken the ground of alibi at the time of his pre-arrest bail application, which proved to be bogus, hence is also not entitled for any further relief.
16. Per learned A.P.-G., the investigations are still going on and final challan has not been submitted, as yet. If, some evidence is recorded and supports the defence thereafter, the applicants may file a fresh bail application before the trial Court. He relied upon Muhammad Aslam v. State 2008 PCr.LJ 356 (Shariat Couit AJ&K) and Usman v. State 2001 PCr.LJ 359.
17. Heard both the learned counsel for the applicants, learned A.P.-G. And perused the record carefully.
18. No doubt, one person has been killed and two received bullet injuries supported by medical evidence, suggests that the incident was occurred, but regarding the involvement of the accused, which has to be seen. It is the prosecution case that the applicant Abdul Ghafoor said Jo have given a Lathi blow only to the complainant, but that has not been supported by any other piece of evidence and it is, also a fact that he has not attributed any injury to other persons. Likewise, the applicant Siddique having pistol said to have instigated the co-accused, but the same was not used, which shows at least as far as his intention was not to injure or kill anybody.
19. It is fact that though the matter was reported to the police even though no F.I.R. Was lodged.
Injured P.W. Abdul Hameed was conscious, oriented and admitted at Civil Hospital, Makli, even then no F.I.R. Was registered and keeping in view of the enmity and the grudge of the complainant with the applicant regarding the switching off his Secretaryship of the Board, mentioned above, the false implication of the applicant Abdul Ghafoor is not ruled out and further the delay itself shows that the F.I.R. May be registered after the consultation, which Balso supports that person in such a moment when so many persons with sophisticated arms attacked upon the complainant party even in the night time, but he has such a photographic eyes, succeeded to capture every action of every accused with the particular arm and role, which also requires further inquiry.
20. The accused/applicant Siddique is said to have raised Lalkara having pistol, but not used the same, hence at this stage, his case also requires further inquiry. The final challan has not been submitted and charge has not been framed as yet.
21. In view of the aforementioned facts and circumstances, the accused persons cannot be kept behind the bars for indefinite period. The judgments relied by the learned counsel for the applicants have supported the case of the applicants, hence they are entitled for bail at this stage.
I, therefore, grant bail to both the applicants subject to furnishing solvent sureties in the sum of Rs,2,00,000 (Rupees two lacs only) each with P.R. Bond in the like amount to the satisfaction of the trial Court.
22. These are the reasons of my short order dated 28-8-2008.