1. ' IMAM BUX BALOCH, J.---Heard Mr. Habibullah G. Ghouri, . Advocate for applicants, Miss Rubina Dhamrah, advocate for complainant and Mr. All Raza Pathan, State counsel.
2. ' Mr. Habibullah G. Ghouri, counsel for the applicants states that there are general allegations against applicants Zahid and no specific role is attributed to applicant Ramzan in the F.I.R. He states that the case of the applicants falls within the purview of further enquiry as envisaged under section 497 (2), Cr.P.C..
3. ' On the other hand Miss Rubina Dhamrah, counsel for the . Complainant states that the applicants along with other co-accused have attacked upon the house of the complainant with the result that two persons lost their lives and Mst. Rubina and minor baby Sumera including the complainant sustained injuries due to indiscriminate firing of the applicants. She has placed reliance on the case of Muhammad Waseem Nawaz v. The State 2002 SCM R 1279 and case of Inayat v. The State 2002 SCM R 129 and contended that the applicants are members of unlawful assembly armed with lethal weapons and had fired upon the house of the complainant.
4. ' Mr. Ali Raza Pathan, learned State counsel supports the contentions raised by Miss Rubina Dhamrah counsel for the complainant and states that name of the applicants are mentioned in the F.I.R with specific role. They have formed an unlawful assembly and in furtherance of their common intention, they have fired upon the house of the complainant which resulted in killing of two persons and injuries to complainant, Mst. Rubina and minor baby Sumera due to indiscriminate firing of the applicant party. He strongly opposed for the grant of bail.
5. ' The prosecution case, as stated in the F.I.R., is that complainant's brother Roshan Ali was having matrimonial dispute with applicant party and due to fear his brother sold out his house to the complainant. On the fateful morning complainant along with his brother Roshan Ali, cousin Qurban Ali, his wife Mst. Rubina and other family members were present when Mour and his sons Ramzan, Ali Hassan (Ali Bux), Jinsar having guns attacked upon the complainant where accused Ali Bux fired upon Mehtab and Jinsar fired upon Ajmeer who sustained firearm injuries who succumbed to the said injuries. On the other side accused Lal Hussain, Saleem, Ajeeb and Zahid also fired from their respective guns upon the house of the complainant. Due to such firing complainant received injuries on the left side of his chest whereas daughter-in-law of complainant Mst. Rubina wife of Ajmeer and minor Sumera daughter of Ajmeer also sustained injuries. Due to fire short and commotion the accused left the scene of offence and vent away. Complainant went to the police station and lodged such F.I.R.
6. ' I have considered the submissions advanced at the bar and perused the police file. 'Admittedly, the name of the applicants are mentioned in the F.I.R with specific role. They had formed an unlawful assembly in furtherance of their common intention, they have attacked upon the house of the complainant and due to indiscriminate firing two persons namely, Mehtab and Ajmeer lost their lives whereas complainant, his daughter-in-law and one minor baby Sumera have received injuries. In the case of Muhammad Waseem Nawaz (supra) the honourable Supreme Court observed as under:--
(2) That precise allegation against the petitioner is that he being a member of an unlawful assembly armed with lethal weapons had fired from the motorcar, as a consequence- whereof, one passerby namely Abdul Majeed was injured. In support of this petition, it is contended that petitioner has been declared as innocent. Main Abdul Qayyum Anjum, Advocate Supreme Court for the State stated that in one of the investigations, he was found guilty, record shows that petitioner is desperate criminal and that there are series of murders between the parties.
(3) Considering the case from all angles, we are of the view that discretion exercised by learned Single Judge in refusing the grant of bail to petitioner is not open to any exception and interference by this Court because, prima facie, there are no reasonable grounds to believe that petitioner is innocent. Consequently, this petition stands dismissed being devoid of merit and substance and leave to appeal declined accordingly.
7. ' Injured witnesses have supported version of the complainant as they are the eye-witnesses of the incident. From the place of wardat five empty cartridges of .12 bore have been recovered during investigation. In the case of Inayat (Supra) the Honourable Supreme Court had observed as under:-
(3) Allegation against the petitioner is that he fired at the eyewitnesses causing them injuries. The doctor, who examined the injured, found fire-arm injuries on the person of eye-witnesses. In such circumstances, the case of the petitioner is not at par with that of his co-accused Muhammad Hanif who was allowed bail earlier.
(4) After having perused the order impugned we find cogent reasons have been given which are based on sound principles of law. No exception to the order of High Court can be taken. This petition fails and is dismissed. Leave to appeal refused.
8. ' Considering the material available on record and after going through the citation relied upon by the counsel for the complainant I am of the considered view that the case of the applicant does not fall within the purview of further enquiry as they have formed an unlawful assembly in furtherance of their common intention and attacked upon the house of the complainant party where two innocent persons have lost their lives and three including minor baby sustained injuries.
9. In such circumstances the applicants are vicariously liable. I see no merit in the bail application which is dismissed.