1. ' IMAM BUX BALOCH, J.---Allegations against the applicants are that they along with co-accused, named in the F.I.R being armed with deadly weapons, formed an unlawful assembly and way laid the complainant party, who were going to Thul Town for purchasing some household articles. The background of this incident would be that as the complainant party was flood affectee and the flood relief articles were given to Hamal Khan Suhindaro for distribution amongst flood affectees.
2. Some boys of the complainant party went to Hamal Khan Suhindaro, but they were disgraced and returned back, therefore, there was some altercation between the parties. It is alleged in the F.I.R.
3. That on 29-10-2010, complainant along with his son Ghulam Ahad, aged about 18 years, brother Kanbir aged about 48 years and relatives Rahib, Karam Din and Manthar Ali were going from their village to Thul Town with some personal work, at 10-00 a.m., when they reached near the house of Ali Gohar Suhindro near Jarra Wah, accused Hamal Khan, Ali Gohar, Abdul Nabi, Din Muhammad, armed with guns, Muhammad Moosa armed with Kalashnikov, Abdul Wahab armed with gun, Asghar armed with rifle, Ghulam Yasin, Muhammad Ramzan, both armed with guns, Ghulam Nabi and Manthar, both armed with Kalashnikovs, all by caste Suhindro, came out from the Otaque of accused Ali Gohar Suhindro and intercepted the complainant. After that at the instigation of Hamal Khan, accused Ali Gohar, Abdul Nabi, Din Muhammad and Muhammad Moosa fired at complainant's son Ghulam Ahad, who received injuries and succumbed to the same at the spot, whereas accused Abdul Wahid and All Gohar fired. Upon Ganbir, who also received injuries and succumbed to the same. Accused Ghulam Yasin fired upon ,Rahib, who received injuries, and accused Abdul Nabi and Muhammad Ramzan fired upon Karam Din (Karimdino), who also received injuries.
4. ' After usual investigation, the case was challaned and is pending in the Court of learned Sessions Judge, Jacobabad.
5. ' The bail application filed on behalf of the applicants was rejected by the learned Sessions Judge, Jacobabad vide his order dated 28-5-2011, which is challenged before this Court.
6. ' Heard Mr. Asif Ali Abdul Razak Soomro, counsel for the applicants, Mr.. Sardar Khan Lashari for the complainant and Mr. Naimatullah Bhurgri for the State.
7. ' Learned counsel for the applicants states that as there is allegation against the applicants that they have caused injuries to two P.Ws, namely, Rahib and Karam Din and their injuries were declared as "Ghayar Mutalahimah", which do not fall within the prohibitory clause of section 497, Cr.P.C. He further contended that a Medical Board was constituted at the request of the applicants, but the injured persons did not appear before the said Medical Board and in such consequence the Medical Board vide Letter No,CMCHL/(SMB)/782/86, dated 13-4-2011 decided that Medico-legal Certificates issued by Dr. Liaquat Ali Pathan, M.O., Taluka Hospital, Thul are kept in abeyance and certificates loose their legal validity till the appearance of injured before the Special Medical Board.
8. He further states that co-accused Hamal, Ghulam Nabi, Asghar Ali and Bashir Ahmed have been released on bail by the learned trial court, as such, the present applicants are also entitled to same concession on the rule of consistency. He has placed reliance on the case of Muhammad Afsar v.
9. The State (1994 SCM R 2051) and Muhammad Haroon v. The State (1994 SCM R 2161).
10. ' On the other hand, Mr. Sardar Khan Lashari, learned counsel for complainant, states that the names of the applicants did appear in the F.I.R with specific role. This is a case of broad-daylight incident and the was lodged promptly within 1-1/2 hours. He further states that the applicants along with co-accused being armed with deadly weapons formed an unlawful assembly and in a pre-planned manner in furtherance of common intention of such unlawful assembly they have attacked upon the complainant party, as a result of which two persons, namely, Ghulam Ahad and Ganbir have lost their lives and P.Ws Rahib and Karam Din have received injuries and states that the applicants are equally responsible as the co-accused. As regards grant of bail to co- accused Hamal, Ghulam Nabi, Asghar Ali and Bashir Ahmed by the learned trial Court, he states that their case is distinguishable from the case of present applicants, as no active role was attributed in the F.I.R against those accused, who have been granted bail. He further states that as the charge has been framed and cases is fixed for evidence, therefore, he undertakes to produce ocular evidence before the trial Court on the date of hearing. He has placed reliance on the cases of Inayat v. The State (2002 SCM R 129), Mureed v. The State (2003 SCM R 64), Muhammad Asghar v. The State (2006 SCM R 966) and The State v. Khalid Shan! (2006 SCM R 1265).
11. ' Mr. Naimatullah Bhurgri, learned State Counsel, also supported the contentions raised by Mr. Sardar Khan Lashari and further stated that during investigation crime weapons were recovered from the applicants and 08 empties of .12 bore and 05 empties of Kalashnikov were also recovered from the place of wardat.
12. ' I have considered the submissions of learned counsel for the respective parties and have also gone through the case-law cited by them.
13. Admittedly, the incident has taken place at 10-00 a.m., and the F.I.R. Was lodged promptly within 1- 1/2 hour, stating all the facts by the complainant. It is also admitted fact that the complainant party was going to Thal Town for some personal Work and when they reached near the house of accused Ali Gohar, they were attacked upon by the accused persons, who were duly equipped with deadly weapons, resultantly two innocent persons lost their lives and two P. Ws received injuries. I have examined the case of Muhammad Afsar (supra) cited by learned counsel for the applicants, it is only case of injuries and there was exchange of firing between the parties. The facts and circumstances of the present case are quite different from the facts and circumstances of the said reported case. In the case of Muhammad Haroon (supra) relied upon by learned counsel for the applicants, the Hon'ble Supreme Court has held that "Muhammad Haroon petitioner is alleged to have caused a firearm injury to Muhammad Aslam deceased, therefore, we are not inclined to interfere with the order of the learned Single Judge refusing bail to him. The only allegation against Usman petitioner is that he raised Lalkaras along with co-accused Luqman and Muhammad Yaqoob while Abdul Rehman petitioner is alleged to have held Mst. Razia Bibi along with co- accused Muhammad Yaqoob. They are not alleged to have caused any injury to any of the deceased persons" and in such circumstances bail was granted to co-petitioners. On the other hand, in the case of Inayat (supra), relied upon by learned Counsel for the complainant, the Hon'ble Supreme Court has held as under:- "3. Allegation against the petitioner is that he fired at the eye-witnesses causing them injuries. The doctor, who examined the injured, found firearm 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 the High Court can be taken. This petition fails and is dismissed. Leave to appeal is refused."
14. ' In the case of Mureed (supra), the Hon'ble Supreme Court has observed as under:-- "The incident is of daytime. 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 herein-above, 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.
(11) We have also perused the impugned judgment of the High Court, which is based on valid and sound reasons and is in consonance with law laid down by this Court. We do not find misreading or non-reading of material available or any misconstruction of law. The impugned judgment is not open to exception. This Court time and again has held that even a single day's delay is to be explained with sound and cogent reasons, whereas in this case the delay of 145 days, in our considered view, has not been explained with valid reasons. Moreover, question of public importance is not involved in this case.
(12) For the facts, circumstances and reasons stated hereinabove, this petition is dismissed on merits as well as on the point of limitation and leave to appeal declined."
15. ' In the case of Muhammad Arshad (supra), following observations were recorded by the Hon'ble Supreme Court:- "The petitioner has been specifically nominated in the F.I.R and specific role of raising Lalkara to facilitate Muhammad Anwar to commit the murder of the deceased has been attributed to him.
16. The background of the case is that prior to this occurrence, a criminal case was got registered against the petitioner at the instance of the deceased Muhammad Hayat, wherein, he and his daughter had to appear as witnesses. In this view of the matter, at this stage, it cannot be assumed that Lalkara raised by the petitioner was proverbial. Hence, prima facie, petitioner is not entitled to bail."
17. ' As regards the commencement of trial of the case, the Hon'ble Supreme Court in the case of The State v. Khalid Sharif (supra) has observed as under:-- "As far as the judgment in the case of Muhammad Jahangir Badar (ibid), relied upon by the learned counsel is concerned, it is not helpful to him because in that case bail was not granted to the accused but the time was fixed for conclusion of the trial. In instant case as well, the charge has been framed and in such-like situation, learned High Court may have directed for completion of trial by adopting certain modalities."
18. After considering all the aspects of the case, I-am of the view that the offence does fall within the prohibitory clause of section 497, Cr.P.C. And the applicants have failed to make out a case for bail.
19. Consequently, this bail application is dismissed. However the learned trial court is directed to expedite the case and conclude the prosecution evidence within a period of six months.
20. ' The observations recorded hereinabove are tentative in nature anti the trial court shall not be influenced by such observations in any manner while deciding the case.