1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No, 243 of 2010 was recorded at Police Station Rohri on 15-11-2010 for an incident alleged to have taken place one and a half hour earlier Complainant Moula Bux, stated that they had a dispute over murders with Hussain. Dino Mirbahar and others. Cousin of the complainant was confined in Central Prison. On the day of incident, uncle of the complainant namely Azizullah had gone to meet his son at Central Prison and the complainant, his brother and his cousin together had come to Sukkur and they also went to meet their cousin at Central Prison.
2. When they reached outside the Central Prison, they met their uncle Azizullah. As they reached there, they saw six persons namely Hussain Bux, Sakhi Dino, Hub Ali, Ali Dino, Qurban (present applicant) and Zanwar coming on two motorcycles. They alighted from the motorcycles and took out pistols from folds of their Shalwars. Hussain Dino gave proverbial Hakal and instigated others; upon which all the six persons started direct firing from their pistols upon Azizullah. Azizullah fell down raising cries and the other six accused persons escaped. Azizullah received six injuries.
3. ' Learned counsel for the applicant submitted that co-accused Zanwar, Hussain Dino and Ali Dino have been let off by Police in the Challan submitted by them. He submitted that there is previous enmity and F.I.R. Has been actuated out of such enmity.. He submitted that incident occurred outside the Jail gate and none of the bullets has hit the gate or pockmarked the jail wall and statement of none of the Police personnel or Jail wardens on duty has been recorded. He next, submitted that all the witnesses are relatives of the complainant and their evidence cannot be relied upon. Lastly, learned counsel submitted that as to who caused fatal injury is yet to be determined and, therefore, case is of further inquiry and the applicant is entitled to bail. He relied upon Dilmurad v. The State, 2010 SCM R 1178, Ahmed v. The State, 2007 PCr.LJ 987, Shafi Muhammad v. The State, 2002 PCr.LJ 494, Lakhmir Kurio v. The State, 2005 YLR 1467 and Muhammad Siddiq v.
4. Muhammad Sharif, 1981 SCM R 784.
5. ' Mr. Shabir Ali Bozdar, learned counsel for complainant, submitted that the applicant has been nominated in the F.I.R. With clear and specific role and F.I.R. Has been promptly lodged. He submitted that six empties were secured from the place of Vardat. The applicant was arrested on 8-12-2010 and a pistol has been recovered at his pointation. Regarding contention of the learned counsel for the applicant that co-accused Zanwar, Hussain Dino and Ali Dino have been let off by Police and have been placed in column 2, learned counsel submitted that Magistrate did not agree with such aspect of Police report and has ordered that the three named persons be also joined as accused persons and such order of the Magistrate has not been challenged so far. He relied upon Moula Bux v. The State, 2009 PCr.LJ 472, Ali Nawaz v. The State, 2008 YLR 2957, Muhammad Arshad v.
6. The State, 2005 SCM R 756, Umar Daraz v. The State, 2004 SCM R 1019 and Shahbaz v. The State, 2006 PCr.LJ 1548.
7. ' Mr. Shyam Lal Ladhani, learned A.P.-G., vehemently opposed bail application. He submitted that repot of the ballistic expert in respect of pistol recovered at the pointation of the applicant and an empty recovered from the scene of the incident is positive. Deceased had six entry wounds and no Police enmity is evident from the fact that three of the accused persons were let off by Police by placing them in column 2.
8. ' I have considered the submissions, made by the learned counsel and have also gone through the record.
9. ' Learned counsel for the applicant relied upon Dil Murad's case (supra). It was alleged that the petitioner along with six other accused, each having a K.K, opened fires on the complainant party resulting in death of two persons. Supreme Court in respect of existence of common intention observed as under:--
(6) We have heard both the learned Advocate Supreme Court as well as learned Prosecutor- General, Sindh and perused the record with their assistance. In our opinion in so far as the issue of common intention is concerned, it is now well-settled that at the bail stage the same is normally one of further enquiry unless there are other compelling reasons and circumstances to reach a different conclusion i.e, by way of other pieces of evidence, which could definitely connect the applicant/ accused with the crime in question.
10. ' Thereafter, Supreme Court noticed that although it was alleged that nine accused persons used their automatic weapons, only four empties of 7.62 MM were recovered from the spot and none of a K.K. This created doubt. In the present case, there are six accused persons, six entry wounds and six empties recovered. In Ahmed's case (supra) according to F.I.R., three persons were alleged to have fired from their firearms on the deceased. Court found strange that the complainant had stated as to which accused had fired on what part of the body of deceased and such a situation could hardly be gathered as it would be very difficult for a person to point out as to which accused caused what injury, particularly when there was instant scuffle resulting into firing. In the present case, as stated above, there are six empties, six pistols and six entry wounds. In Shafi Muhammad's case (supra) according to F.I.R., as the complainant party was travelling on Indus Highway, three accused persons were found standing there, out of whom, Shafi Muhammad had a wooden Pati and Urs had some pieces of bricks. Shafi Muhammad is alleged to have given him a blow with the wooden Pati on the front of his face and then other accused persons hit his face and back side of neck. Bail was allowed by a Single Judge of this Court on the ground that it was yet to be seen as to who had given fatal blow. It is a case in which no firearm was used. Blow by a hard and blunt substance stands at different footings from a fire directly made at a vital part of the body of deceased. In Lakhmir Korio's case (supra) allegation against the applicant was that on the day of incident, he duly armed with riffle along with 8/9 accused persons having deadly weapons entered into the house of the complainant. Two of the accused persons were alleged to have fired at mother of the complainant. Medical evidence indicated that deceased had received one shot injury whereas ocular evidence had stated that two persons fired and the Court granted bail on the ground that it was yet to be seen as to which one's fire hit the deceased. In the present case, as stated above, there were six assailants, six pistols, six entry wounds and six empties recovered. Last case relied upon by the learned counsel was that of Muhammad Siddique (supra). It is a case relating to West Pakistan Urban Restriction Ordinance and, therefore, obviously, cannot have any applicability to the facts to the present matter.
11. ' On the other hand, learned counsel for complainant relied upon Moula Bux's case (supra). Facts of the F.I.R. Were that on the day of incident, complainant, a Police Constable, had gone to his house on a motorcycle. He along with his three relatives was going to fields when on the way they found a car from which five persons alighted. Three of . Them were armed with firearms. As soon as accused persons came near, Hakal was given. One accused Abdul Rahim with his revolver fired upon brother of the complainant hitting him on his head. Other members of complainant party took shelter and the complainant stated that they saw co-accused Ali Bux fired from his pistol on complainant's brother which hit him on naval and Moula Bux and another fired upon brother of the complainant while he was lying prone on the ground. Bail was rejected on the ground and that all the injuries received were sufficient in themselves for causing death. In Ali Nawaz's case (supra) it was alleged in F.I.R., after narrating previous enmity etc., that complainant party was intercepted by the accused party which had some members armed with hatchets and one armed with a shotgun, who fired upon the complainant party. It was then that applicant Ali Nawaz gave sharp side hatchet blows to the deceased. Medical evidence supported ocular evidence and the bail was refused. In Muhammad Arshad's case (supra) it was alleged that the petitioners while armed with hatchets caused injuries on the person of deceased who succumbed to injuries at the same spot.
12. Supreme Court observed that petitioners were named in F.I.R. With specific role of causing injuries to the person of deceased with Their hatchets. In Umar Daraz's case (supra) role attributed to the petitioner was that he had chased the deceased and taken him into his clasp and as such facilitated causing of major injuries by the other accused. Supreme Court did not interfere with the order of the High Court by which order bail was declined. Lastly, case of Shahbaz's case (supra).
13. Was relied upon where it was alleged that Bashir caught hold of Rafique from behind (Japha) and Shahbaz inflicted hatchet blows on his head.
14. 'In the present case, there, are thAe circumstances, which, in my opinion, disentitle the present applicant to bail: firstly, direct role has been attributed to him that he was armed with pistol and F.I.R. Has been lodged within an hour and some minutes of the incident; secondly, there arc six assailants, six pistols, six empties recovered and six entry wounds on the deceased; thirdly, a pistol is alleged to have been recovered at the paintation of the present applicant and learned A.P.-G.
15. Argued that it was sent to ballistic's expert and he has given a positive report matching an empty recovered with that of the pistol.
16. ' In the F.I.R., following injuries are stated:
(1) through and through in the temporal;
(2) entry from side of chin and exit from right side of ear;
(3) entry from mouth and exit from back of head;
(4) left side of chest;
(5) entry from right side of nipple and exit from back; and,
(6) right upper arm.
17. ' It appears to be a case of premeditated murder. There is no other apparent reason to believe that the encounter between the parties was a chance encounter. Learned counsel submitted that previous enmity existed between the parties and F.I.R. Has been actuated by previous enmity.
18. Obviously, one would murder someone only if there is a previous enmity and on the other hand, one would falsely implicate someone only when there is a previous enmity; therefore, previous enmity is a sword which cuts both ways.
19. ' Result of the above discussion is that this bail application is dismissed.
20. ' Needless to observe that the trial Court shall not be, in any manner, whatsoever, influenced by any of the observations made above, while deciding guilt or innocence of the persons standing trial before it.