1. SALMAN HAMID, J.---Khuda Bux and Ibrahim both sons of Mir Muhammad, Muhammad Saleh and Abdul Rahim, both sons of Noor Muhammad and Jeeando son of Shafi Muhammad moved Bail Application No.21 of 2009, before Additional Sessions Judge, Sanghar, in Crime/Case No. 3 of 2009, under sections 302, 364, 337-H (ii), 337-F(i)(v), 506(2), 147, 148, 149, P.P.C. Such bail application in terms of Order dated 2-5-2009, was allowed by the Additional Sessions Judge. Sanghar, as far as it relates to Khuda Bux and Ibrahim, both sons of Mir Muhammad and Jeeando, son of Shafi Muhammad. However, by such order dated 2-5-2009, bail was refused to Muhammad Saleh and Abdul Rahim both sons of Noor Muhammad.
2. It is in this perspective that present bail application No. S-488 of 2010 has been moved by Muhammad Saleh and Abdul Rahim both sons of Noor Muhammad (the applicants) before this court.
3. To appreciate the case of the applicants of present bail application, it is necessary to bring out the entire background of the case, involved therein, which has been deduced and/or extracted from the record of the file, which would reveal that on 5-1-2009 at 3-30 p.m. Near village Modhka Road, Deh Ranak Dahar, Taluka Khipro at a distance of 55/60 K. Ms. From the police station, where the incident was reported, the complainant namely Ghulam Sarwar, son of Punhoon Khan reported as under:-- "Complaint is that I reside at the above given address. Namely Hanif son of Mir Muhammad (ii)
4. Sikiladho son of Abdullah Rajar (iii) Muhammad Saleh son of Noor Muhammad Rajar brought the robbed Van of Jamaities (In fact Jamalies) from Tando Adam and left it to our lands. Thereafter they informed the police that the Van robbed from Tando Adam was stalled in the land of Chopanies. For that the Sanghar police raided our lands and took away the Van. We thereafter complained to them in a neighbourly traditions that they had stalled the robbed Van in our land and thus they had committed excess against us by giving spy information to Police. We also told them to compensate us in the way as neighbourly tradition. On this Muhammad Hanif and his men came to us and told us that we should go to them to their village Modhakar on 5-1-2009 where settlement is scheduled. On this yesterday on 5-1-2009. I, my maternal uncle Ismail son of Ali Chopan (ii) Niaz Muhammad son of Ismail (iii) Anwar son of Ramzan Chopan (iv) Khan Muhammad son of Ali Muhammad (v) Ghani son of Muhammad Ramzan (vi) Muhammad Ayub son of Ali Muhammad Chopan reached at Modhakar by the side of road for settlement. Meanwhile Photo son of unknown Rajar with klashnikov in hand (ii) Mitho son of Rajar having a Rifle in his hand
(iii) Hasan son of Ilyas Rajar with a Repeater in his hand (iv) Sajan son of Mir Muhammad Rajar having a double barrel gun in his hand (v) Habibullah son of Mir Muhammad Rajar having a double barrel gun in his hand (vi) Hanif son of Mir Muhammad Rajar having a Rifle in his hand (vii) Sanwal son of Mir Muhammad Rajar having double barrel gun (viii) Khuda Bakhsh son of Mir Muhammad Rajar having a hatchet in his hand (ix) Saleh son of Mir Muhammad Rajar having a lathi in his hand
(x) Abdul Rahim son of Mir Muhammad Rajar with a lathi in his hand (xi) Master Jiando son of Shafi Muhammad Rajar with a lathi in his hand (xii) Ibrahim son of Mir Muhammad having a double barrel gun in his hand reached there. They immediately besieged us. Thereafter by show of weapons they snatched his licensed Repeater from my maternal uncle Muhammad Ismail and told us that if we wanted our safety we should go back and that they were taking away Ismail and his son with them. Thereafter within our view Photo Rajar, Hanif Rajar, Muhammad Saleh, Sanwal, Sikiladho and Abdul Rahim took away my maternal uncle Ismail in vehicle No. BA-5123 and No.BB- 8149 towards sand mounds, whereas the rest of the accused took Niaz Muhammad, the son of my maternal uncle after blind folding and beating him towards their houses. They also made firing in the air towards us. As a result we returned to our village. Thereafter we informed Nekamards (headmen), who advised us that it was a matter of neighbourhood and that we should wait till next day. However, nobody has so far contacted us as such, I have come to complain that the above named accused persons together duly armed, after committing rioting on the pretext of settlement sent for us to their village, gave us threats of instant death and have abducted my maternal uncle Muhammad Ismail and his son Niaz Muhammad with an intention to kill them.
5. Complaint is for investigation."
6. The learned counsel appearing for the applicants stated that in addition to F.I.R. No. 3 of 2009, contents of which have been reproduced above, F.I.R. No. 2 of 2009 at the same police station in respect of the same incident as narrated in the above F.I.R. Had been lodged by Khuda Bux, son of Mir Muhammad on 6-1-2009 at 0015 hours from the applicants' side which reads as under:-- "Complaint is that I reside at the above given address. About 20/25 days back Muhammad Ismail Chopan and others had committed robbery of a Van and brought it in their village. About this the owners of the Van with the aid of Sanghar police had raided their village and secured the robbed Van. The allegations about this raid was levelled by Muhammad Ismail Chopan and others on my brother Muhammad Hanif and cousin Muhammad Saleh Rajar to the effect that we had given the spy information to police for such raid. We told them that we had not given spy information to police and also that we were willing to get the matter settled in community tradition. However, Ismail Chopan and others did not accept our suggestion and became aggrieved with us. Today in the evening at about 5-00 p.m. While we were available in our house when the persons namely Muhammad Ismail Chopan son of Ali Chopan with Repeater in his hand (2) Muhammad Ayoub son of Ali with Single Barrel Gun in his hand (3) Khan Muhammad son of Ali Muhammad with a hatchet in his hand (4) Nek Muhammad son of Ismail with a hatchet in his hand (5) Niaz Muhammad son of Ismail with a single barrel gun in his hand (6) Abdul Ghani son of Ramzan with a lathi in his hand
(7) Bhutto son of Muhammad Ramzan with a lathi in his hand (8) Anwar alias Neo (Eino) a lathi in his hand (9) Juro son of Ishaq Chopan with a lathi in his hand (10) Fiaz Muhammad son of Punhoon Cholyan (Chopan) with a lathi in his hand and two unknown person whom I can identify on seeing them, came in a Potohar Jeep and LGT Jeep. They called us from outside of our house on which I, my brother Muhammad Hanif and cousin Muhammad Saleh son of Noor Muhammad Rajars came out. Muhammad Ismail after hurling abuses threatened that they would kill us at once. Meanwhile my uncle Allah Bachayo son of Kamal Rajar and other villagers reached there. My uncle Allah Bachayo intervened and tried to pacify them on which Niaz Chopan made straight firing from his gun at my uncle Allah Bachayo with an intention to kill him. The shot hit him on his left shoulder, whereas the other accused persons fired in the air from their respective weapons in their hands. On fire reports the other village people also reached there. On seeing them all the accused persons succeeded fleeing away by boarding in their Potohar and LGT Jeeps. However, during that process we apprehended Niaz son of Ismail along with his gun. Thereafter we transported our injured uncle Allah Bachayo Rajar through his son Muhammad Juman Rajar to Khipro for treatment. After that we intimated the facts to our village headmen. Then we brought apprehended person Niaz Chopan with the Gun at Khipro where we learnt that my cousin Muhammad Juman after obtaining letter from Police Station had taken his father Allah Bachayo to Khipro Hospital after administration of first aid for treatment there he took him to Hyderabad for further treatment to Hyderabad. The apprehended person Niaz Chopan and his single Barrel Gun detailed below are produced with a complaint that all the above named accused persons after preplanning and duly armed committed rioting and with a view to kill my uncle Allah Bachayo, Niaz Chopan directly fired at him and seriously injured him, whereas the other accused persons made firing in the air from the weapons in their hands, abused us and gave threats to cause our immediate deaths. Complaint is for investigation."
7. After making reference of the two F.I.Rs., the learned counsel argued that it was a case of counter F.I.Rs. In respect of one and the same incident, which had taken place near the village of the applicants and that the case of further inquiry under such circumstances cannot be ruled out. The learned counsel further argued that there were no grounds available with the learned Additional Sessions Judge, Sanghar for not accepting that the applicants have not committed the alleged offence and that since co-accused namely Mitho, Muhammad Hassan, Muhammad Sajian and Habibullah have been granted bail in respect of the same offence, following the rule of consistency the bail ought to have been granted, more particularly when Khuda Bux, Ibrahim and Jeeando had been granted bail by the Additional Sessions Judge, Sanghar by following the rule of consistency. It was further argued that the learned Additional Sessions Judge, Sanghar failed to appreciate that F.I.R. No.3 of 2009 had been lodged by the complainant after delay of 24-1/2 hours, whereas F.I.R.
8. From their side was registered promptly in respect of the same incident which was also subject matter of F.I.R. No.2 of 2009 and under such circumstances consultation and deliberations on the part of the complainant could not have been ruled out. It was further urged that the complainant in their F.I.R. No.2 of 2009 have admitted that there was grudge between them and the applicants and other members and therefore, it cannot be ruled out that it was the complainant and the rest of the men who had come with him came to attack the applicants and their other members, as mentioned in their F.I.R. No.2 of 2009. It was further argued that if at all the complainant and the rest of them had come for settlement on the basis of neighborly feeling, what made them come heavily armed for such settlement. Due to firing from the complainant side. Allah Bachayo from the applicants side was seriously injured which fact was also not taken into consideration by the learned Additional Sessions Judge, Sanghar and no weight was given to it. Lastly but not the least, it was argued that various cases were pending against deceased Ismail for example Crime Case No.76 of 2001, registered at Khipro P.S. On 17-10-2001 under sections 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, wherein deceased Ismail was challaned with others as absconders and that one more case was pending against him in the Anti-Terrorism Court. In such circumstances scores of enemies against him was highly probable. Arguing on such plain, the learned counsel asserted that there was very high probability that Ismail was killed by some other persons who were his enemies. It was also argued that there was no ocular evidence about the killing of deceased Ismail at the hands of the applicant, more particularly that it was beyond logic that out of the two abductees i.e. Father and son, the son was immediately brought to the P.S. Who would not disclose that his father had been abducted and would also not disclose the place of abduction more particularly when it was this son who caused grievous injury to Allah Bachayo. Thus the allegation on the face of it was fabricated and far from the truth. Causing of injury to Allah Bachayo was also suppressed by the complainant side. The learned counsel for the applicants, in support of his contentions relied upon PLD 2009 SC 58, 2008 SCM R 1448, 1998 SCM R 570 and 1996 SCM R 1845.
9. Appearing on behalf of the State, the APG Sindh only submitted that rule of consistency was not applicable in the present case and that since the two applicants were found involved in commission of heinous crime which terrorized entire village are. Not entitled for the benefit of bail.
10. Nothing more was argued, added or elaborated by the learned APG.
11. The learned Additional Sessions Judge Sanghar while denying the benefit of bail to the two applicants in paragraph 10 of his Order dated 2-5-2009 stated as under:- "So far as bail plea of applicants/accused Muhammad Saleh and Abdul Rahim is concerned, per F.I.R. And other material available on the record said applicants/accused along with absconding accused Photo, Sarmad, Muhammad Hanif and Sikiladho allegedly abducted complainant's maternal uncle Muhammad Ismail on the show of weapons and thereby took away him in a Jeep.
12. Subsequently after two days of his abduction his dead body was found by a police pierced with bullets. Per Medico Legal Certificate as many as fourteen firearms injuries were noted on the person of said Muhammad Ismail deceased. The police in a raid arrested present applicants/accused Muhammad Saleh and Abdul Rahim while going in the Jeep. In this view of the matter it appears that applicants/accused have acted in a extremely brutal and desperate manner not only they are said to have abducted Muhammad Ismail on the show of weapons but his dead-body was subsequently found by the police with volley of bullets which obviously created terror and panic in the area as pointed out by the learned counsel for the complainant. This is a heinous offence and prosecution has so far collected sufficient material connecting the applicants/accused Muhammad Saleh and Abdul Rahim with the commission of offence. It is a settled principle of law that while considering the request of the accused for his release on bail, a deep appreciation of evidence is not called for and the Court seized with the matter in terms of section 497(2), Cr.P.C. Is required to make tentative assessment of evidence available on record.
13. (Reference may be made on 2006 SCM R 1292)."
14. Bare perusal of above reproduced paragraph of Order dated 2-5-2009 would show that the body of Muhammad Ismail was recovered two days after his abduction riddled with bullets. From the record and/or narration of paragraph 10 it is not clear and/or it is clearly visible that the body of deceased Muhammad Ismail was not found either from the possession of the two applicants or near from them or that the applicants were trying to dispose of the deceased and were found with it. The order itself shows that "it appears" that the applicants acted in extremely and brutal manner.
15. However, again the order only says that the body was subsequently found by the police upon finding of such body. The learned Additional Sessions Judge on his own came to the conclusion that there was, "sufficient material" connecting the applicants with the commission of offence.
16. What was the material connecting the applicants with the killing of the deceased was not discussed at all. Even a cursory mention is not available. On the contrary the grounds those have been taken by the learned counsel for the applicants had also been raised before the learned Sessions Judge, Sanghar which amongst others, included the possibility of deceased's enmity with others, which would have been a cause of his death: that there was only an allegation that the deceased abducted and that too, in the perspective that there were counter F.I.Rs. In respect of the same incident and the possibility of raising allegations from the side of complainant cannot be ruled out when on complainant's own showing there was enmity between them and the applicants side.
17. It would be advantageous to note that earlier in time M/s. Mitho son of Hot, Muhammad Hassan, son of Muhammad Ilyas, Muhammad Saijan and Habibullah both sons of Mir Muhammad preferred Criminal Bail Application No.40 of 2009 directly before the High Court of Sindh at Karachi in respect of same F.I.R. No. 3 of 2009, which is the subject matter of the present bail application whereby the High Court of Sindh in terms of Order dated 13-4-2009 enlarged all the above named applicants on bail on the ground of further inquiry and the fact that counter F.I.Rs. Were involved i.e. F.I.R. No.2 of 2009 and F.I.R. No.3 of 2009 in respect of one and same incident. In that Criminal Bail Application No.40 of 2009, the learned counsel Mr. Muhammad Ashraf Kazi appeared on behalf of complainant namely Ghulam Hussain son of Punhoon Khan and attempted to argue that it was not a case of counter F.I.Rs. But subsequently gave it up. The relevant portion of the Order dated 13- 4-2009, showing such a position is reproduced hereunder:-- "Mr. Muhammad Ashraf Kazi, learned counsel for the complainant in Crime No. 03 of 2009, initially attempted to argue before this Court that the lodging of F.I.Rs. Nos. 2 of 2009 and 3 of 2009, Police Station Khipro relate to two different incidents, which have occurred at 3-30 p.m. And 5-00 p.m.
18. Respectively. However, when confronted with the contents of the two F.I.Rs. And other material placed on record, learned counsel did not seriously press this point. In this regard the learned Additional Prosecutor-General, Sindh, after going through the police appears also brought to the notice of the court that as per police record, the place of occurrence of the two incidents is one and the same and only one incident has taken place regarding which these two counter F.I.Rs.
19. Have been lodged. Next, Mr. Muhammad Ashraf Kazi made reference to the 161, Cr.P.C. Statements of the prosecution witnesses Niaz Muhammad, Abdul Ghani, Muhammad Ayub, Khan Muhammad and Anwar All as well as Postmortem Report of deceased Muhammad Ismail son of Ali Chopan and medical Certificate about the injuries of Niaz Muhammad son of deceased Muhammad Ismail.
20. Making reference to these doucuments, he strongly argued that the manner in which Muhammad Ismail son of Ali Chopan deceased was brutally murdered by the accused party, requires serious .
21. Consideration and further all the prosecution witnesses in their 161, Cr.P.C. Statements have fully supported the case of the prosecution against the accused party, therefore, at this stage, in the nomination of present applicants in the crime no mala fide can be attributed to the police or the complainant's side, nor any case for grant of pre-arrest bail is made out in their favour. He also submitted that grant of interim pre-arrest bail to the applicants on 15-1-2009 has seriously hampered the investigation of the said crime, therefore, it is yet another ground, which disentitles confirmation of pre-arrest bail in favour of the applicants."
22. In the case of Ali Sheharyar v. The State 2008 SCM R 1448, the honourable Supreme Court of Pakistan held that in a case of counter version where the accused party had also sustained injuries and a tentative assessm ent of the material on record causes doubt about the person responsible for the incident, benefit of bail is to be extended inasmuch as that the determination by trial Court of minute details is required to come to the decision as to who was aggressor and who was aggressed. Similarly, in the case of Shoaib Mehmood.Butt v. Iftikhar-ulHaq and 3 others 1996 SCM R 1845 the honourable Supreme Court of Pakistan laid down the principle that while deciding the bail application one could resort to tentative sifting of evidence as distinguishable from elaborate sifting of evidence while granting bail. In the same case the honourable Supreme Court further laid down that bail is to be allowed it appears to the court that there are sufficient grounds for further inquiry into the guilt of the accused and what would constitute as sufficient ground for further enquiry would depend on peculiar set of case and no hard and fast rules can be laid clown and that every hypothetical question, imaginable would not make it a case of further inquiry. However if accused charged for offence under section 302, P.P.C. And grounds for further inquiry are available which may show that he may not be convicted for the charges he was booked and may be acquitted then further inquiry has to be undertaken. It was also laid down in the reported case that two counter versions arising from the same incident; one given by the complainant and the other by the opposite side such case according to the honourable Supreme Court of Pakistan was a case where bail on the around of further inquiry as contemplated under section 497(2), Cr.P.C. Was available inasmuch as it was yet to be ascertained out which version in the two F.I.Rs. Was correct and which party was aggressor and which party was aggressed upon.
23. Appreciating the arguments advanced by the learned counsel for the applicants and the case law cited it becomes clear that there is possibility of mala fide involvement of the complainant in implicating the applicants which at this stage cannot be ruled out and therefore, this case becomes one of those where further inquiry as contemplated under section 497(2), Cr.P.C. Is required. Since this is the position which has emerged the two applicants are enlarged on bail upon furnishing surety in the amount of Rs. 200,000 each and personal bond in like amount to the satisfaction of the trial Court.
24. The observations made hereinabove while granting the bail to the applicants being tentative must not come into the way of the trial Court in any manner whatsoever and the trial Court would be free to apply its mind independently while deciding the fate of the criminal case, emanating from F.I.R. No.3 of 2009 of Police Station Khipro.