' KHADIM HUSSAIN M. SHAIKH, J.---By this common order, I intend to dispose of all above three Criminal Miscellaneous Applications Nos. 80 of 2009, 81 of 2009 and 117 of 2009, which arise out of the same Crime No, 77 of 2008, Police Station Guddu, for offences under sections 324, 427, 109, 148, 149, P.P.C.
2. Through these three applications, the applicant/complainant Barkat Ali seeks cancellation of bail grantee to accused Yar Ali and Dost Ali in Criminal Miscellaneous Application No,80 of 2009, Abdul Hakeem and Raza Muhammad in Criminal Miscellaneous Application No,81 of 2009 and Ali Gohar in Criminal Miscellaneous No, 117 of 2009, granted to them by the learned Court of Sessions Judge, Kashmore at Kandhkot, in the above crime by separate orders, dated 12-3-2009 and 16-5-2009.
3. Briefly, the facts of giving rise to the present applications are that on 28-12-2008, at 1700 hours complainant Barkat Ali appeared at Police Station Guddu and lodged his F.I.R. For offences under sections 324, 427, 109, 148, 149, P.P.C., stating therein that on that day the complainant along with his brother Liaquat Ali, his nephew Sikander. Ali and his servant Shahmir Shah boarding to their Jeep No,BE-0167/ Karachi, while were returning back their village/house after finishing their work at about 4-30 p.m. When they reached near village Ghulam Rasool, they saw accused namely, Ali Gohar, Noor Khan, Afzal all armed with kalashnikovs, Beero, Yar Ali, Aziz armed with pistols, Dost Ali armed with gun all by caste Mazari and two unidentified persons armed with kalashnikovs.
Accused Ali Gohar by abusing and signaling stopped the jeep of complainant party; then he challenged the complainant to beware as Abdul Hakeem and Raza Muhammad have ordered them to kill him (Barkat Ali). Accused Ali Gohar fired his kalashnikov straight at complainant hitting the complainant in his left shoulder, complainant's nephew Sikander Ali tried to rescue him, but said accused fired his kalashnikov at Sikander Ali, which hit him on his left hand, the complainant's servant Shahmir tried to save them, to which accused Afzal fired his kalashnikov at Shahmir, hitting him at his chin and then all the accused directly fired upon the complainant Barkat Ali and P.Ws., Sikander, Liaquat and Shahmir with intention to murder them. The accused seeing them falling down went away on their jeep and motorcycles standing there. The complainant Barkat Ali, P.Ws., Sikander Ali and Shahmir had sustained injuries on different parts of their bodies. Bullets hitting complainant's jeep and crossing its body also caused damage to it breaking its wind screen etc. Then the complainant's brother Liaquat Ali who luckily did not sustain any injury, brought them at Police Station Guddu, where F.I.R. Was lodged against accused, at 5-00 p.m.
4. After the investigation challan against the accused was filed in the Court.
5. The learned trial Court vide afore-said orders confirmed interim pre-arrest bail granted to the respondent/accused Abdul Hakeem and Raza Muhammad and granted post-arrest bail to co- accused Yar Ali, Dost Ali and Ali Gohar. The complainant being aggrieved by the said bail granting orders has filed the present applications for cancellation of bail granted to all the above accused.
6. Learned Advocate for the applicant/complainant has mainly contended that respondent Ali Gohar, Yar Ali and Dost Ali are assigned the specific role of causing multiple fire-arm injuries to complainant Barkat Ali, P.Ws., Sikandar All and Shahmir on different parts of their bodies including their vital parts, and names of all the above accused/respondents transpired in the F.I.R., and that the incident took place at the instance of accused Abdul Hakeem and Raza Muhammad, therefore, all the accused/respondents named above were not entitled to be enlarged on bail. He, therefore, prays for cancellation of bail granted to the respondents/accused. He has placed his reliance on case of Ghulam Muhammad v. Khan Muhammad and 11 others (1975 PCr.LJ 604).
7. The learned Advocate for respondents/accused has contended that the respondent Abdul Hakeem and Raza Muhammad were not shown to be present at the place of incident, that the fire- arm injuries assigned to the rest of accused namely, Ali Gohar, Yar Ali and Dost Ali did not fall within prohibitory clause of section 497, Cr.P.C. And that the accused/respondents were rightly granted bail by the learned trial Court, he, therefore, prays for dismissal of all three applications. He has placed his reliance on case of Muhammad v. The State (1998 SCM R 454), and Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125).
8. The learned State counsel supports the impugned order.
9. I have carefully considered the arguments advanced by the learned counsel for the parties and have gone through the material placed before the Court with the help of learned State counsel. I find that the respondents/accused Abdul Hakeem and Raza Muhammad were not shown to be present at the time of incident and only abetment in absentia is attributed to both of them, therefore, their involvement in the commission of this offence requires further enquiry. I am of the view that both the said accused/respondents namely, Abdul Hakeem and Raza Muhammad were rightly granted bail by the learned trial Court. Accordingly the Criminal Miscellaneous Application No,81 of 2009, whereby the complainant has sought for cancellation of bail granted to them by the learned trial Court being devoid of substance was dismissed vide short order, dated 20-7-2009.
10. So for the bail granting orders relating to the rest three accused, namely, Yar Ali, Dost Ali and Ali Gohar is concerned, the said three accused duly armed with lethal weapons namely, kalashnikovs, pistols and guns have caused multiple fire-arm injuries to the complainant Barkat Ali and P.Ws., Sikander Ali and Shahmir on various parts of their bodies including their vital parts by firing from their respective weapons at them, that the Medico-legal certificates of injured/ complainant Barkat Ali, Sikander Ali and Shahmir reveal that complainant Barkat Ali had sustained five fire-arm injuries on different parts of his body including chest and abdomen with entry and exit wounds, P.W. Sikander Ali sustained three fire-arm injuries on his forehead and other parts of his body with entry and exist wounds, and injured Shahmir sustained six fire-arm injuries on his chin, skull, 'neck and chest and other parts, that the names of these three accused/ respondents namely, Ali Gohar, Yar Ali and Dost Ali do find place in the F.I.R., which was promptly lodged at Police Station Guddu within half an hour of the incident. Prima facie there is sufficient evidence to indicate that attempt was made by accused Yar Ali, Dost Ali and Ali Gohar on the lives of complainant Barkat Ali and P.Ws., Sikandar Ali and Shahmir, and their case is covered by 1st part of section 324, P.P.C., which falls within prohibitory clause of section 497, Cr.P.C., therefore they were not entitled to be enlarged on bail, that the orders, dated 12-3-2009, and 16-5-2009, granting bail to the accused Yar Ali, Dost Ali and Ali Gohar by the trial Court are patently illegal, arbitrary and is the result of exercise of discretion against the well-settled principles governing the bail matters,
11. The cases of Muhammad and Mumtaz Hussain and 5 others (Supra), relied upon by the learned Advocate for the accused/respondents are distinguishable on facts and circumstances of the case in hand, as in case of Muhammad (supra), the accused had allegedly made ineffective firing and no inquiry was attributed to him during the occurrence, therefore, the apex Court granted bail to the petitioner, and in case of Mumtaz Hussain and five others (supra), the accused despite being allegedly armed with deadly weapons like rifle, guns and hatchet had only caused simply blunt injuries to some of the prosecution witnesses using wrong side of their weapons, therefore, the petitioners were admitted to bail by the apex Court, whereas in the case in hand all the three applicants/accused namely, All Gohar, Yar Ali and Dost Ali are assigned specific role of causing multiple fire-arm injuries to complainant Barkat Ali and P.Ws., Sikandar Ali and Shahmir as discussed above. In case of Ghulam Muhammad v. Khan Muhammad and 11 others (supra), relied upon by the applicant/complainant, this Court cancelled the bail granted to the six respondents who were armed with fire-arms.
12. In view of the above circumstances, the bail granted to accused/respondents Ali Gohar, Yar Ali and Dost Ali was cancelled with directions to them to surrender themselves before the learned trial Court, immediately. The Criminal Miscellaneous Applications Nos. 80 of 2009 and 117 of 2009, were allowed, where Criminal Miscellaneous No,81 of 2009, was dismissed, by short order, dated 20-7- 2009, and these are the reasons for the same.
13. In the end it is clarified that the observations made hereinabove are of tentative nature only for the purpose of purpose of disposal of the above three applications are the same shall not stand in the way of the trial Court to come to its independent opinion on the basis of the evidence adduced before it at the time of deciding the case.