1. ' IMAM BUX BALOCH, J.---Heard Mr. Shahbir Shar learned counsel for the applicant, Mr.Shyam Lal learned A.P.G. For the State assisted by Mr. Ali Gul Abbasi learned counsel the complainant.
2. ' The case of the prosecution is that the complainant having landed dispute with Sukhiyal Jatoi and otheRs, On the fateful day complainant along with his brother Manzoor Ahmed aged about 30 years and relatives Qambar and Khuda Bux went to cattle Piri near Ali Whahn. After finishing work all of them returning back when they reached near Ice Factory at village Rajib Ali Dayo Link Road and waiting for a conveyance, at about 10-00 a.m. One white Colour Car came and seven persons were alighted from the car and they have identified them to be Sukhiyal son of Bijar empty handed, Muhammad Nawaz, Hakim Ali son of Sukhiyal Jatoi having pistols. Ashique, Akram both sons of Jindal Shar r/o Mari Mando Dero, amongst them Ashique having repeater gun in his hand and Akram having a pistol and one unknown person having kilashnikoves in his hand. Sukhiyal Jatoi instigated of all the accused by saying that finish Manzoor Ahmed, on the instigation of Sukhiyal Jatoi accused Muhammad Nawaz fired a shot with pistol upon Manzoor Ahmed, which hit him.
3. Accused Bijar also fired a shot with pistol upon Manzoor Ahmed which too hit him. Accused Hakim Ali fired a shot with pistol which hit Manzoor Ahmed. Applicant/accused Ashigue also fired from his repeater gun upon Manzoor Ahmed which hit him on the backside. Accused Akram and unknown person restrained complainant party by saying that no one would come near them and fired upon the complainant party but the complainant party saved themselves. After that all the accused boarded in the same Car and went away. Complainant went to P.S. And lodged the report.
4. ' After failing to obtain the bail from the learned trial Court the instant bail application is filed.
5. ' Learned counsel for the applicant contended that the medical evidence is conflicting to ocular evidence. He further argued that there is enmity existing in between the parties and after a little investigation the names of the present applicant along with others were kept in Column No,2 of the challan. The learned counsel further argued that police found that there is in-sufficient evidence against the applicant, hence his name is kept in Column No,2 of the challan but the learned Magistrate did not agree with the recommendations of the Investigating Officer and joined the accused in the challan sheet. Learned counsel for the applicant has relied upon the following case-law:--
(i) Yaroo v. The State (2004 SCM R 864)
(2) Shafiq v. The State (2008 M LD 1447)
(3) Saleh v. The State (2003 YLR 844)
(4) Muhammad Aslam v. The State (2009 YLR 1150)
6. ' On the other hand Mr. Shyam Lal learned A.P.G. Assisted by Mr, Ali Gui Abbasi learned counsel for the complainant has relied upon the following case-laws:--
(1) Muhammad Rafique and 4 others v. The State through Advocate General (2003 PCr.LJ 351)
7. [Shariat Court AJ&K]
(2) Syed Mehboob Shah v. The State (1995 SCM R 1099)
(3) Mureed and 2 others v. The State (2003 SCM R 64)
8. I have considered the submissions advanced at the bar and perused the material available on record. The F.I.R. Was lodged promptly with half an hour and the complainant narrated the facts as occurred in the fateful incident. The postmortem report shows nine injuries some are entry wounds and some are exit wounds. The witnesses in their 161, Cr.P.C. Statements have supported the version of the complainant. From the place of wardat empty cartridges were recovered, which corroborates the version of the complainant and witnesses. The postmortem report further reveals that the deceased received injuries on his backside. The learned counsel for the applicant has taken plea of alibi that, during course of investigation the investigating officer recorded the statements of independent witnesses who supported the versions of applicant. The statements recorded by Police in favour of the applicant and others have no concern with the incident as they were not present at the time of incident. The motive behind the crime is clear from the facts as stated by the complainant and witnesses that the applicant along with Sukhiyal Jatoi, his sons and others armed themselves with lethal weapons and with a pre-planned manner have formed an unlawful assembly and attacked upon un-armed persons with a result that one person lost his life.
9. ' In the case of Yaroo (supra) the facts are different from the facts of the present case and allegation against petitioner Yaroo was that he was armed with a Soti and general allegations of causing injuries to the witnesses mere levelled against him, hence the facts of the present case are different from the case of Yaroo supra.
10. ' In the case of Shafique (supra) are that Shafique was armed with .222 rifle and was in company of his other co-accused formed an unlawful assembly and caused death of Manzil Abbas and only the presence of Shafique was shown in the F.I.R. Which are distinguishable from the facts of the instant case.
11. ' In the case of Saleh (supra) relied upon by the learned counsel for the applicant, facts are that applicant Saleh along with other nominated accused entered in the otaq of the complainant armed with hatchets and started giving sharp sided hatchet blows to the son of complainant on different parts of his body and allegation against accused/applicant Saleh was that he had instigated co-accused to cause murder of the son of the complainant on account of previous enmity, which are also different from the facts and circumstances of the instant case.
12. ' In the case of Muhammad Aslam supra relied upon by the learned counsel for the applicant are that in the first investigation Muhammad Aslam found innocent and in the second investigation conducted by S.S.P. Range Crime Branch, Multan who came to the conclusion that he has not been able to dig out the truth and if the witnesses are joined in the investigation something can be done for further proceedings in this case. In these circumstances Muhammad Aslam was granted bail by the honourable Lahore High Court. The facts of the Aslam case are also on different circumstances. In the present case specific role of causing gunshot injuries from a repeater is attributed upon the applicant.
13. ' Learned counsel for the complainant relied upon the case of Mureed and two others supra, in which the honourable Supreme Court has observed that the incident is of day time. The cross-case lodged by the accused party against the complainant side was disposed of as "B" Class. Be that as it may, we refrain from to dilate upon this aspect which may prejudice the case of either party before the trial Court, where evidence is yet to be recorded. However, prima facie specific role of causing injuries to the deceased and P. Ws. As mentioned hereinabove is attributed to each of the petitioner, which is fully supported by the ocular account furnished by the P. Ws. Before the prosecution and it also gets corroboration from the medical evidence.
14. ' In the case of Syed Mehhoob Shah supra, relied upon by learned counsel for the complainant the honourable Supreme Court observed as under: "Mr. S. Safdar Hussain. Learned counsel for the. Petitioner argued that the petitioner was innocent, that the witnesses had not supported the prosecution case, that the version given in the F.I.R. Was belied by the inquest report and medical evidence and that the plea of alibi taken by the petitioner has been accepted by the investigating agency and his name has been put in column No,02 of the challan. The Learned counsel took exception to observations made by .The learned Single Judge of the High Court in para.3 of the impugned order."
15. ' In he case of Muhammad Rafique and 4 others (supra) the Shariat Court of (AJ&K) has observed as under:-- "It may he mentioned here that while deciding a bail application of an accused alleged for committing offence under sections 34 or 149 A.P.C. The paramount consideration should be that he was a member of unlawful assembly and the offence was committed in furtherance of common object. If there appears that it was in knowledge of such an accused that the offence shall be committed in furtherance of common object of the unlawful assembly then every member shall be responsible for the act committed by any one of them and if the offence committed falls within the prohibitory clause of section 497, Cr.P.C. The bail shell be refused to each of them.
16. ' In the present case the accused persons were alleged for firing and committing murder of Nadeem and his father Barkhuddar Khan. The allegation of causing fire-arm injuries was supported by post-mortem reports. The contention of the learned counsel for the accused petitioners that during investigation only Shabir and Asghar accused were found guilty of firing at the deceased persons merits no consideration as it was clear from the report submitted under section 173, Cr.P.C.
17. That during the occurrence Muhammad Rafique raised Lalkara by telling others not to left Barkhuddar Khan go alive and Muhammad Saleem was alleged for being present at the place of occurrence armed with .222 bore gun. The presence of other accused persons at the place of occurrence armed with lethal weapons was not denied and it vas further established by the eye- witnesses. The accused petitioners prima facie were alleged for waylaid, chasing and committing the offence of murder thus being members of unlawful assembly they were not entitled to concession of bail. The trial Court gave very strong reason while passing the impugned order, therefor, the same needs no interference.
18. ' Upshot of the above discussion, is that finding no force in this revision petition, it is hereby dismissed."
19. In this case the F.I.R. Is prompt and lodged within half an hour of the incident. The specific role assigned against the applicant: The applicant along with others have formed an unlawful assembly and in consequence of their common intention they have attacked upon unarmed persons in which deceased Manzoor Ahmed had lost his life. There is motive behind the crime as there was landed dispute between the deceased party and accused Sukhiyal Jatoi and others, The applicant in order to please his companion Sukhiyal Jatoi and others have armed himself and joined hands with Sukhiyal Jatoi and otheRs, The witnesses in their 161, Cr.P.0 statements have fully implicated the applicant in the commission of crime. The contention of learned counsel that due to in-sufficient evidence the names of applicant along with others kept in Column. No, 2 of challan is not helping the applicant at this stage. At this stage tentative assessment is to be done. After tentatively assessing the evidence available on record, I am of the considered view that the applicant has no case for bail. Accordingly the bail application is dismissed by short order, dated 5-7-2010 and these are the reasons for the same.