1. SAJJAD ALI SHAH, J.---Applicants DSP Abdul Wahid Buriro, SIP Khadim Hussain, SIP Ali Akbar, SIP Mir Muhammad, SIP Anwar Ali and A.S.-I. Shahid in Bail Application No S-39 of 2011 and SIP Mulazim Hussain in Bail Application No. S-173 of 2011 seek bail in Crime No.293 of 2010 under sections 302, 324, 365, 395, 147, 148, 149, P.P.C. Of Police Station Jamshoro.
2. On 10-12-2010 at 1500 hours one Ghulam Murtaza reported an incident which took place at 2-30 a.m. On the same day by asserting that one Abdul Raheem Sakhani Chandio resident of village Kario Barr Khan has matrimonial dispute with Ali Raza Chollani resident of Warrah and complainant has no concern with said dispute, despite All Raza has filed false cases against the complainant party. Notwithstanding, that they tried to convince them that they are innocent and ready for settlement by way of Faisla but they did not agree. On 9-12-2010 when the complainant party after taking meal went to their beds at about 2-30 a.m. They woke up on the sound of whispering and saw in the light of bulbs that (1) Ali Raza (2) Shafqat, (3) Moula Bux, (4) Bashir Ahmed armed with K.Ks. (5) Khair Muhammad, (6) Lal Bux, (7) Panio Khan, (8) Manzoor, armed with K.Ks and pistols all Cholanies resident of Warras along with five unidentified accused who were also armed with K.Ks, and pistols accompanied with police party i.e. DSP Wahid Bux Buriro of P.S. Kamber (Applicant No1), SIP Imdad Hulio of Police Station Warrah, S.-I. Shahid Memon of Police Station Nasirabad (Applicant No.6); A.S.-I. Noor Mugheri of Police Station Waggan, SHO Khadim Hussain Maghsi of Police Station Mirokhan (Applicant No.2), SHO Akbar Khokhar of Police Station Mahi Makol (Applicant No.3). SHO Mir Muhammad Abbasi of Police Station Drig (Applicant No.4); SHO Anwar Abro of Police Station Nasirabad (Applicant No.5), SIO Manzoor Mastoi of Police Station Warrah PC Banho Khuhawar of Police Station Warrah. PC Ali Gohar Ghanghro of District Kamber Shandadkot and other police officers entered the house of the complainant. The police officers on gun point made them hostages, the complainant fell down due to fear and thereafter A.S.-I. Shahid Memon took three tolas gold and cash of Rs.60,000. Applicant No.1 DSP Abdul Wahid Buriro one double barrel gun of .16 bore SIP Imdad Hulio rifle; A.S.-I. Noor Mugheri made body search and took five mobile phones of Nokia company. Thereafter accused Ali Raza fired with his K.K. Straight upon Muneer Ahmed (brother of complainant) which hit on his head, accused Shafqat tired from K.K. Which hit on head of Irshad (cousin of complainant), accused Moula Bux fired from K.K. Upon Mohabbat Ali (maternal uncle) which hit on his breast accused Bashir fired from K.K. On Mashooq Ali (maternal uncle of complainant) which hit him. Muneer Ahmed Irshad and Muhabbat Ali succumbed to the fire-arm injuries. Accused Khair Muhammad, Lal Panio Khan and Manzoor and other accused made tiring which hit on wall. Likewise SHO Khadim Hussain, SHO Akbar Khokhar, SHO Meer Mohamad Abbasi, SHO Anwar Abro, SIO Manzoor Mastoi, SHO Mulazim Abbasi. PC Banho Khan and PC Ali Gohar Ghanghro and other police party made fire and then they boarded in seven police mobiles, one Parado of DPO and three White cars and went away. Complainant thereafter brought the injured and dead bodies to Liaquat Medical Hospital Jamshoro where, after obtaining, letter from police for treatment dead bodies were post mortem. Thereafter the dead bodies were taken home when the complainant came to know that the accused persons have also abducted his maternal grandfather Arz Muhammad and consequently the F.I.R.
3. Mr. Sarfaraz Khan Jatoi, counsel appearing for the applicants/ police officers contends that the applicants have no role whatsoever in the triple murder of the complainant party and further it is a dark night incident and there was neither any source of light to identify the accused persons nor any source to name the" police officers by their ranks and mere this aspect sufficiently prove false implication. It was next asserted that the distance from the place of occurrence and police station is hardly 1.5 kilometer and therefore, delay of 12-1/2 hours in lodging the F.I.R. Proves consultation. He further contends that there is a distance of about 500 kilometer between Jamshoro and Warrah and implicating police officers from Warrah proves their false implication. Counsel asserts that in fact the F.I.R. Should have been lodged against the DPO whose car was found near the place of incident and not against the police officers. Mr. Jatoi further during his arguments contended that it was the fault of the DPO who without a written order deputed police team to raid the house of the complainant party, however, (on pointation from the Court that by making such 'submission the applicants are admitting their presence at the place of incident Mr. Jatoi withdrew such contention). Mr. Jatoi has further placed on record various orders from Constitutional Petition No.1545 of 2010 pending before the Circuit Court Larkana of this Court to contend that the dispute between Lal Bux Cholyani (one of the principal accused in the instant crime) and some people of Sakhyani Chandiya caste in respect of the abduction of womenfolk against each other is pending and asserted that it was dispute between two tribes and the applicants have nothing to do with it.
4. Counsel, therefore, prayed the confirmation of bail as the police officers have been falsely implicated. Reliance has been placed on the case of Muhammad Ashiq Hussain v. The State (2004 PCr.LJ 1890) to plead that heinousness of crime is no ground to refuse bail if the accused is otherwise found entitled to ail and on the case of Abdul Sattar Narejo v. The State (2003 PCr.LJ 398), Muhammad Dilpazeer v. The State (1984 PCr.LJ 2400) and Rafique Ahmed v. The State (2000 PCr.LJ 994) to plead that refusal to grant bail would put the applicants who are police officers to harassm ent and humiliation.
5. Mr. Muhammad Siddiq Abbasi Advocate for the applicant in Criminal Bail ,Application No. S-39 of 2011 adopts the arguments of Mr. Sarfaraz Khan Jatoi.
6. On the other hand Mr. Shahid Ahmed Shaikh, APG and Mr. Riazat Ali Sabar, Advocate for the complainant vehemently opposed the grant of bail by contending that all the applicants seeking bail have been named in the F.I.R. With the specific role, therefore, they are not entitled to the concession of bail. The APG referred to the portion of F.I.R. And asserted that the Police Officers who were present along with principal accuse had pointed the guns towards the complainant party and made them hostages and thereafter applicant/accused A.S.-I. Shahid Memon took three tolas gold and cash of Rs.60,000; applicant/accused DSP Abdul Wahid Ruriro one double barrel gun of .16 bore. SIP Inidad Hulio rifle. A.S.-I. Noor Mugheri made personal search and took five mobile phones of Nokia company, and thereafter pointed out to the portion wherein it was asserted "SHO Khadim Hussain Magsi. SHO Akbar Khokhar, SHO Mir Muhammad Abbasi, SHO Anwar Abro, SIO Manzoor Mastoi, PC Banho Khahawar and PC Ali Gohar Glianghro and other police officers also fired and thereafter they boarded in seven mobiles and one Parado of DPO forty empties were also recovered from the place of incident. In the end counsel pointed out towards Order dated 20-12- 2010 passed in Constitutional Petition No. 1545 of 2010 placed on record by Mr. Jatoi a portion whereof in verbatim is reproduced:-- "The R.P.O. Sukkur, D.P.O. And S. P. Investigation., KamberShandadkot are in attendance. They have made efforts to comply with the order and made attempts to recover the alleged abductee baby Zeenat and they have submitted their report in that regard, which is taken on record. They have also intimated by such report, and orally stated that during such attempts/efforts the petitioner party was in company of the police party headed by D.S.P. Level officer and when they reached destiny on such information of the petitioner side within the area of Police Station Jamshoro, the respondents Nos.7 to 11/rival group of the petitioner party resisted the efforts of the police party and as a result cross firing took place between the police party including, the petition party and the said rival group, which resulted in death of three persons from the said group, and the said incident has been reported by them in Police Station Jamshoro, against nominated persons, including the police officials and the petitioner party, which is registered as Crime No.193 of 2010, dated 10-12- 2010, under sections 302, 324, 365, 395, 148, 149 P.P.C."
7. It was lastly contended that the applicants/accused being facilitator have facilitated the murder of three persons from the complainant party without keeping any entry in the concerned police station and have raided the house of the complainant unlawfully at 2-30 a.m. Therefore, not entitled to the concession of bail.
8. I have heard learned counsel for the respective parties and have perused the record.
9. Perusal of the F.I.R. Reflects that all the applicants/accused police officials have been specifically named in the F.I.R. They have beer shown duly armed with specific role i.e. (a) firing; (b) making the complainant party hostage on gun point and (c) looting the Complainant party, have been assigned to them. There is no enmity whatsoever between the applicants/Accused and the complainant nor it has been pleaded therefore, the question of false implication at this juncture does not arise. As to the plea of the applicants regarding, dark night incident and the identification of Applicants/Accused, the F.I.R. Specifically mentions that the complainant party had identified the accused persons on the light of bulbs. As to 12 hours delay in lodging, the F.I.R. The Complainant has properly and satisfactorily explained the delay in lodging the F.I.R. Further, statement of the R.P.O. Sukkur and DPO Qa'uber at Shandad Kot before the Bench at Larkana admitting the raid and firing reproduced above cannot be ignored. The offence with which the applicants/accused are charged falls within the prohibitory clause of section 497, Cr.P.C. And further the case of Applicants/Accused does not fall within the following framework/guideline provided by the Apex Court in the case of Rana MUHAMMAD ARSHAD V. MUHAMMAD RAFIQU (PLD 2009 SC 427) within which this Court has to exercise powers under section 498 Cr.P.C:--
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e., unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. He had no past criminal record or that lie had not been a fugitive at law and finally that;
(t) in the absence of a reasonable and a justifiable cause a person desiring his admission to bail before arrest, must in the first instance approach the Court of first instant i.e., the Court of Sessions, before petitioning the High Court. For the purpose.
10. In the circumstances, I am not inclined to grant the applicants concession of bail and therefore, dismiss both the bail applications. The orders dated 18-1-2011 as well as 14-3-2011 whereby applicants/accused were granted interim pre arrest bail are hereby recalled. These are the reasons for short order passed in the earlier part of the day dismissing both the bail applications.